Does a Consent Order have to be Drafted by a Solicitor?
I think it’s helpful to look at how the court system works to understand whose responsibility it is to prepare court orders generally and then look at the question does a consent order have to be drafted by a solicitor.
Divorce court orders generally
In family cases, specifically divorce cases, there are some totally standardised court orders. These are, for example, the decree nisi and the decree absolute.
The court service automatically produces these documents. It is straightforward for the court service to do this because apart from changing the names of the parties, some dates and the case number, every decree is identical.
Financial Remedy Orders
Financial remedy orders are not so straightforward. Each one is bespoke. Each one is unique to the parties involved in that case. Some are very simple, for example orders which only contain clean break provisions. Others are not simple and require careful attention to detail.
There are two types of financial order. Financial orders which are made by a judge after a contested hearing and financial orders made by consent.
First of all I will deal with financial orders made after a contested hearing.
When people cannot agree how to divide their assets on divorce or separation and have to apply to the court for a judge to make an order about how they are to be divided, the judge listens to the parties and reads various documents to help him or her reach a decision. That decision is also based on a number of factors which have to be weighed up. Those factors are dealt with in a different article. But once the judge has made a decision who then writes up the order?
Until April 2013 it is very likely that the overwhelming majority of people going to court had a solicitor. If they were on low income they would more than likely have been entitled to legal aid. If they were better off they probably employed a solicitor rather than go to court alone. At the conclusion of the hearing the judge would give his or her judgement and tell one solicitor (usually the applicant’s solicitor) to prepare a draft of the order and send it into the court for him or her to check.
Once the order was approved by the judge that same solicitor would ordinarily have several copies typed and these would also be sent in to the court so that the court staff could apply the court seal and these copies would then become the sealed court order.
There are no standard court forms for a financial order and there is a good reason for this. As I have already said financial orders are complex and individual.
Sometimes I think people underestimate how much work goes into making sure that financial orders are done properly. The finished product looks easy enough to understand but believe me if something is missed out or not prepared carefully enough it can have disastrous consequences. Knowing or having access to some standard precedents is only half the job. Selecting the right ones and adapting others is the majority of the work. Like any other job the standard precedents we use are just tools. It is the skill with which we use them that we charge for.
Consent orders are financial orders which are being made by agreement as opposed to after a judgement. The same level of skill and experience has to be applied to the preparation of a consent order as to any other financial order. In fact if anything it is more important, much more important, to get it right because there is no right of appeal once it has been made legally binding.
But aside from the benefit of using a solicitor which is much the same as comparing whether to use a chartered surveyor to inspect a property you want to buy or just take a chance on it being sound, the question being asked is “does a financial order (whether by consent or not) have to be drafted by a solicitor?”
The answer is another question. Or several questions.
For example who else knows how to do one? Will the court accept orders prepared by the parties themselves? Are unregulated businesses allowed to prepare them? Do they have sufficient training?
To answer the first question it is logical to expect the same judges who approve the orders to know how to prepare them. However, Judges are employed by the government through the ministry of justice to make decisions, to give judgement. They are not employed to type out consent orders. They don’t have secretaries to do this either.
How would they know what the agreement was. It is not up to the court staff to take these details from people and there simply are not the resources for them to do so. It should also be remembered that court staff have no legal training as a rule.
So although the judges themselves probably know how to prepare a consent order or any type of financial order, for the time being at least that is not how the system works.
Will the courts accept consent orders prepared by the parties themselves?
I receive quite a few enquiries from people who have tried this and not succeeded. Most of the time this is because they have just written letters to the court asking for orders to be made along certain lines. There are a host of reasons why the court cannot do this. To begin with many people don’t understand what can be ordered and what can’t, others haven’t thought about the many “what if…..” scenarios. So the idea that people can just write to the courts and an order will magically appear is overly optimistic.
If the consent order is properly put together on the other hand in draft form, there is absolutely no problem with the individuals themselves sending the consent order into the court for approval. The parties deal with the court service which saves significant money which would otherwise be spent on solicitors writing in, taking copies of documents and undertaking other administrative tasks which individuals are by and large perfectly capable of doing for themselves.
It is important to distinguish between the level of skill and expertise which goes into preparing an important legally binding document and putting a stamp on a letter to send that document to the court office.
It is for this reason that I developed my DIY consent order service which is aimed at people who don’t mind doing a lot of the legwork themselves in order to save money. It is expensive to employ a solicitor to do administrative work because they are over skilled for that type of work and to be fair the majority of solicitors don’t want to overcharge but if we have to pay a secretary salary and a pension etc those costs have to be passed on to our customers. The solution is if you want to keep your bills down, do some of the administrative tasks yourself and just pay the solicitor for the job they have the training and skill to do for you.
Finally, can you use an unregulated firm to do a consent order for you? By unregulated firm I mean for example a company like divorce online or quickie divorce etc.
The law does ask does a consent order have to be drafted by a solicitor. It says that conducting litigation for a member of the public can only be done by a regulated authorised person. A solicitor is authorised to conduct litigation. Therefore you can be reassured that no law is being broken by using a solicitor to prepare your consent order whoever actually sends it to court. Whether you can use an unregulated firm depends upon the interpretation of conducting litigation. They are not allowed to represent you. This means that they are not allowed to act on your behalf in your divorce or in applying for your consent order. They are not regulated. They do not have mandatory insurance and cannot have the same professional indemnity insurers as a solicitor’s firm. They are not allowed to mislead you in this way. If they do they are breaking the law.
Anyone is allowed to sell you a document as long as they do not try to file it at court on your behalf or pretend or allow you to believe that they are regulated solicitors.
If an unregulated, uninsured firm makes a mistake you have no recourse whatsoever. You should look very carefully at the small print and at the words used on their websites and in their contracts with you. Often they will make a great deal about how cheap they are by comparison with solicitors. In my experience this is over exaggerated. I know many solicitors who offer services both for divorce and financial orders at a fraction of the cost suggested on the websites of unregulated firms. Claims to save you hundreds or thousands of pounds are often dubious in my opinion.
In the end it is up to the individual. As long as you send the consent order into the court you can pay an unregulated firm if you wish to prepare the document for you. But please do bear in mind there is no monitoring of these firms. It is impossible to know how much experience or training the individual preparing your document has. They really may have absolutely none. No one is going to check because no one regulates them.
By contrast a solicitor’s experience is public knowledge. Their details can be verified by looking at the law society website. Ongoing professional training year on year is compulsory. Insurance is compulsory as well.
I receive a number of enquiries every year from people who used an unregulated firm and their documents were poorly drafted, failed to reflect the agreements accurately and were ultimately rejected by the court.
As far as I am aware the court service does not recommend that you use unregulated services. The court will not prepare a consent order for you and it is highly unlikely that someone without legal training could prepare one which accurately reflected the agreement you have reached.
Therefore whilst there no rule which says it must be done by a solicitor there doesn’t seem to me to be much of an alternative at the moment.
As more and more people access our justice system without legal representation due to the abolition of most legal aid, the traditional practice of asking a solicitor to write up the order may need to be reconsidered but this is likely to take some time. Creating a safe reliable court service alternative is also likely to cost the tax payer a lot of money. Paying for other people’s divorces isn’t an election winner so I wouldn’t expect much progress to be made in the near future.
An overhaul of the whole system may be needed in the next few years but there are still many tens of thousands of people using the system every year and until a suitable replacement for the services of a solicitor is introduced it is quite likely that the court service will still have no option but to say to people that if you want a consent order you need to see a solicitor.
My DIY consent order service starts at £180. I do not give advice however for this. You take complete responsibility for that yourself. What I do is send you a questionnaire and you are asked to give me a brief details of your financial situation and the agreement you have reached with your former partner. When I receive that questionnaire back from you fully completed if it is seems to me that you need advice I will tell you. Whether you go on to take that advice is up to you.
There will inevitably be situations where people do not give me all of the information and there will be people who should not have a clean break but who slip through the safety net not only of my questionnaire but the checks that the district judge makes as well.
It is always always preferable to take advice where possible. It is money well spent if it saves you entering into an agreement which would be potentially very costly.
The overwhelming majority of people who are using my DIY consent orders have reached an amicable agreement with their spouse/former spouse. These agreements tend to be fairly straightforward. If your circumstances are complex then again I am likely to advise against using this type of service and take some proper advice. This is not an attempt to make a situation more difficult or expensive as very often it leads to me sending potential customers to another firm perhaps closer to where they live. I have no wish to become involved in giving people the wrong documents which ends up being detrimental to them. Ultimately that would create a problem for me too.
But if your situation is straightforward and you are amicable and agreed on the division of your assets; if you are able to communicate with each other; if you are happy to deal with the administration side of sending your paperwork into court (with instructions on how to do this) then my DIY consent order services are a cost-effective way of obtaining a consent order properly drafted by a solicitor with many years experience.
If you would like more information on any of our services please get in touch.
Author: Nicola Williams