What if a consent order is breached?
If one or both parties breach a consent order by failing to carry out obligations such as paying maintenance, then the order can be enforced.
Consent orders are approved by courts, so a breach of one is effectively a breach of a court order - something that courts look very unfavourably upon. Unless there is a good reason for breaking the agreement, the person would be liable to fulfil his or her responsibilities immediately.
Reporting a breach
It is good practice to send a warning letter to your ex-huband or ex-wife before you report a breach so that you provide him or her with an opportunity to meet his or her responsibilities. Doing so strengthens your position as a reasonable and fair person.
If your ex-spouse does not respond, you can report the breach to the court using a D11 form.
You might consider obtaining help from a solicitor in completing this form. On it, you state that you think the order may have been breached, and that you would like it to be enforced.
At the same time you send the form to the court, you should send a copy to the other party so he or she is aware that he or she is likely to face court action.
Who pays?
If the case is seen in court, then the party who has initiated the case pays the fees.
If the court finds that there has been a breach, then the person who has broken the order will have to cover the court costs and any solicitor fees of both sides.
Either party may represent himself or herself, or hire solicitors to do so.
If the court agrees that there has been a breach
In most cases, if there has been a breach, the consent order will be enforced by the court.
The person who has made the breach will be required to pay the money owed or carry out the task given to him or her (for example, subscribing for medical insurance for the other) within a certain period of time.
If he or she fails to do so, the court order will be broken, which is punishable by a fine or even prison.
When a breach won't be enforced
There are some circumstances, however, in which the person breaching the order may not be asked to meet their responsibilities.
This is usually the case if circumstances have changed materially (just like supervening events that we discuss below).
For example, if an ex-husband is unable to pay maintenance because he has been made redundant and does not have the money, then the court is likely to allow him to stop payment until he finds new employment. Such a ruling would be written into the consent order.
Since whether or not an order would be enforced depends on the circumstances, it is often best to seek the advice of a solicitor to clarify whether you are likely to obtain the outcome you want.