Breaching a consent order

Article reference: UK-IA-FAM09
Last updated: August 2022 | 5 min read

Once the Court has made a consent order it is legally binding and cannot be changed unless an appeal is upheld by another judge.

The implication of this is that recurring regular payments (such as maintenance payments, child care payments or insurance premiums) have to be paid until an event specified in the order occurs (such as the party receiving payments remarries). Payments could, possibly, be for the life of either party.

However, having an order made by a judge does not always make the contents final. They can be challenged.

Before we cover what happens if one of you breaches a consent order, it may be useful to consider how the contents of an order are decided.

The judge in your case who makes the order has complete discretion as to how to divide your assets and debts between you and your ex and whether maintenance payments should be made. Their role is to decide what is fair to you both.

A draft consent order is a suggestion as to what the final order should be. It is made by you and your ex (usually drafted by one of you and agreed by the other). As such, it gives a judge strong guidance on what you both think is fair.

A judge may also consider whether you have made a separation agreement, and if so, what was agreed in it, and whether you made a prenuptial agreement.

Just because you are happy with your draft consent order doesn't mean that a judge will rubber stamp it. There may be parts of it with which they disagree (such as what is fair for your children) or you might not have considered something that is important.

But generally, they will use your draft as the basis of their consent order.

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.

Because consent orders are made by the Court (a judge's decision), 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 their 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 them with an opportunity to meet their 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 can find forms from

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 they are aware that they are likely to face court action.

Who pays if a consent order is breached?

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.

There are circumstances in which a consent order can be appealed.

Non-disclosure of material facts when the order was drafted

Particularly in the situation where one party did not disclose all his or her income or the real value of his or her assets to the court when the consent order was approved, it can be challenged.

The key is that the differences were 'material', in other words, large enough to make a difference. A mis-statement of salary by 1% is unlikely to be judged as material, but failing to disclose secondary sources of income (such as income from a rental property or income from a second job) are more likely to be material.

Fraud or misrepresentation

Similar to the point above, fraud and misrepresentation are purposeful non-disclosure.

Supervening events

A supervening event is one that has happened since the consent order was approved.

In some circumstances, the consent order could be changed.

For example, if an ex-husband who is receiving maintenance remarries, the ex-wife may have the order appealed so that she does not 'look after' her ex-husband's new wife. Similarly, if there are payments to maintain a lifestyle, but that lifestyle changes, the payments may no longer be suitable. Obtaining an inheritance may also qualify as a supervening event.

It is up to a court to judge whether a supervening event merits the overturning of a consent order, not the individuals, even if the individuals are in agreement.

If undue influence was used

A draft consent order is a mutual agreement.

If the final order was made by the judge on the assumption that the draft order presented to them was the wishes of both and it later becomes apparent that it was not, the Court may declare the final order invalid.

For this to happen, one party needs to present evidence that the other party used undue influence to persuade him or her to accept the order.

Examples of undue influence include being drugged or being threatened (either physically or mentally - such as a threat not to allow your children to do something). The level of undue influence must be reasonable.

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