Author: Chloe Ashman

A consent order is a court order (agreed by consent) that details the financial agreement reached between you and your spouse on divorce. You and your spouse agree the terms between you, usually with the help of your lawyers. This is then sent to court and reviewed by a judge. If the judge is satisfied that the terms of the agreement are fair and reasonable then they approve it; it is then a binding and enforceable court order.

It is common practice to finalise a consent order and have it approved by the court before you finalise the divorce itself. This is because there are certain benefits to you remaining as someone’s spouse until the consent order is finalised i.e. receiving pension rights or property if your spouse were to die.

If you finalise your divorce but you do not have a consent order, the financial claims you can each make against the other (as a result of having been married) remain active. So, even though you are divorced (i.e. the court granting a Decree Absolute or Final Order) it is still possible for you (or your ex-spouse) to make financial claims against the other until this is terminated by the formalities of a consent order.

The recent judgment in HAT v LAT [2023] EWFC 162 illustrates the pitfalls of not finalising a consent order. In this case, the husband and wife married in 1984 and divorced in 1993. They had been divorced for over 25 years when the wife issued an application for spousal maintenance and payment of her legal fees.

The parties had a high standard of living during their marriage and did not have any children. The husband had a successful career and had founded a company in the 1990s that was subsequently sold for £314 million. In 1994, the parties entered into a Deed of Separation (which purported to conclude all financial matters). The agreement was that the husband would pay the wife £702,000 and that there would be a ‘clean break’ i.e. no maintenance paid. Whilst the husband recalled the agreement being drawn up into a consent order, he had no evidence of this. The court therefore had to proceed on the basis no consent order existed. In those circumstances, the wife was entitled to make her application for maintenance.

Despite the payment of £702,000 and the terms of the Deed of Separation, the husband also provided a loan of £2.1 million to the wife in 2009 to help her buy a property in London. The husband also provided other financial support to the wife over the course of the next 10 years – paying for utilities, a car, educational courses, BUPA cover and a monthly allowance.

In 2022, the husband told the wife he would cease all payments and that the London property should be sold. He reduced the monthly allowance considerably and then eventually stopped paying all together. The husband’s position was that the wife should be held to the terms of the Deed of Separation and receive no further financial provision.

The judgment was only an interim decision (meaning the final outcome of the case is still to be determined). However, in was made clear that whilst it was highly unusual for a claim to be made so long after the divorce (29 years in this case), this was mitigated by the Deed of Separation and that the husband had continued to provide financial support to the wife after their divorce. The judge ultimately concluded that a delay of this length was not a bar to making a claim and it would not automatically prevent an application for financial relief. It would, however, be a factor the court takes into consideration.

Whilst the facts of this case are quite unusual, the judgment highlights that until financial claims are extinguished by a court order then it remains possible to makes claims against an ex-spouse irrespective of how long you have been divorced. It is therefore common sense to have a consent order drawn up in every case to protect yourself from claims many years down the line.

If you are divorced and do not have a consent order or need some advice about how to put one in place contact our family law specialists for a free 45-minute consultation.

REMO stands for Reciprocal Enforcement of Maintenance Orders and it is essentially an international agreement between countries to help recover child maintenance from parents who live in different countries.

REMO can help parents living in England or Wales (when the other parent has moved abroad) and if a parent is living abroad (and the paying parent lives in England or Wales). This is on the strict basis that both countries are participating REMO countries.

Before beginning the REMO process you must first ensure that you have a child maintenance order (or equivalent) that you can enforce. The aim of the REMO system is for reciprocating countries to enforce the child maintenance order you have as if a court in that country had made the order itself. It sounds straightforward but the REMO system can be complex and slow.

The first stage is to find out where the ‘Central Authority’ is in the country where you live. All applications must go through this Central Authority. The Central Authority in England is at: The Reciprocal Enforcement of Maintenance Orders Unit (REMO), Victory House, 30-34 Kingsway, London, WC2B 6EX. You can find the list of reciprocating countries and their Central Authority addresses here: https://www.hcch.net/en/states/authorities

Once you know where your Central Authority is, you need to make an application for ‘registration and enforcement of your order’. The precise form and details you need to provide will vary from country to country.

Your application will need to be supported by documentation i.e. your original court order and details of any steps you have taken to try to obtain payment from the paying parent directly. It will also be helpful for the application to include details of where you think the paying parent lives and works. The more information the better. If any of your documents are not in the language of the court who will be asked to deal with enforcing the decision, you will need to obtain a translation.

Registering and applying to enforce your order is a very important step that must be done correctly. If it is not, the court will not have the power to obtain payment from the other parent. You can make the application yourself in England or Wales (with the assistance of REMO) but you may want to consider instructing a specialist family solicitor to ensure this is done correctly.

Your Central Authority is likely to require you to obtain a ‘Statement of Enforceability’ from the court that made the original order to send with the application. So, contact the court as early as possible about this. You may need to attend in person before a judge to obtain this documentation. Again, you may prefer to instruct a specialist family solicitor to assist with this.

You do not have to use a lawyer to access the REMO system, but the application process can be complex and confusing. Even if you do not instruct a lawyer to assist you with the application, it is advisable to instruct a specialist lawyer in the country where the court will hear your application to ensure that you are best represented at any court hearings.

Once your court order has been registered in the reciprocating REMO country (this can take many months), you can proceed as if that country made the order in the first place. In England or Wales, an application to enforce the order and deal with any arrears is likely to involve 3 separate court hearings. The first two will be preliminary ‘directions’ hearings at which the court determines what further evidence is needed from the parties – for example disclosure of P60s, tax returns or witness statements. Eventually a Final Hearing will be listed (at which you may need to give evidence) and the court will determine whether or not money is owed and, if so, how much. The court may also use its powers to ensure payment is made. For example, in England and Wales the court has the power to put a charge on someone’s property or make an ‘attachment of earnings order’ (where the court can obtain payment directly from someone’s employer). The power the court has to obtain funds for you will depend on which country is dealing with your REMO application.

If you are successful in enforcing your court order and you incurred legal costs in doing so, it would be advisable to seek a cost order against the other parent. Whether or not you can obtain a cost order at the end of REMO case will depend on the specific rules of the country enforcing the order and the specific circumstances of your case, but it is always something to request.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about enforcement of maintenance orders, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.

There has been lots mentioned about children and their surnames in the press recently following an Italian court ruling in which it was confirmed that new-born Italian children should be given the surname of both parents. This decision reversed the long-standing tradition of children being given the surname of their father.

In the UK, a child acquires their name when it is registered following their birth by the child’s parent or another person with parental responsibility. A child’s name must be registered within 42 days of it being born. If the parents are married, both parents have the power and duty to register a birth. If they are not married, only the mother has the power and duty to do so. It is therefore easy to see how issues can arise during the birth registration process. Issues can also arise a number of years after the registration of a birth. For example, the parents of a child who was registered with the father’s surname, might separate and the mother thereafter wants their child to be known by her surname or the surname to be double barrelled. Equally, there are fathers who were not consulted prior to the child’s registration of birth who would like the surname to be amended to reflect their own or to be double barrelled.

To change a child’s name, you need either the consent of all persons with parental responsibility or a Specific Issue Order. Applications are made under s.8 Children Act 1989 and must address any relevant welfare concerns under s.1 of the Children Act 1989 (the welfare checklist).

The Law

The case of Re W, Re A, Re B (Change of Name) [1999] EWCA Civ 2030, [1999] 2 FLR 930 (“Re W”) is the leading case relating to the change of a child’s name. In case, the judge set out some general guidance for cases such as these:

(a) If parents are married, they both have the power and the duty to register their child’s names.

(b) If they are not married, the mother has the sole duty and power to do so.

(c) After registration of the child’s names, the grant of a residence order (now known as a ‘lives with order’) obliges any person wishing to change the surname to obtain the leave [permission] of the court or the written consent of all those who have parental responsibility.

(d) In the absence of a residence order, the person wishing to change the surname from the registered name ought to obtain the relevant written consent or the leave [permission] of the court by making an application for a specific issue order.

(e) On any application, the welfare of the child is paramount and the judge must have regard to the s 1(3) [of the Children Act 189] criteria [the welfare checklist].

(f) Among the factors to which the court should have regard is the registered surname of the child and the reasons for the registration, for instance recognition of the biological link with the child’s father. Registration is always a relevant and an important consideration but it is not in itself decisive. The weight to be given to it by the court will depend upon the other relevant factors or valid countervailing reasons which may tip the balance the other way.

(g) The relevant considerations should include factors which may arise in the future as well as the present situation.

(h) Reasons given for changing or seeking to change a child’s name based on the fact that the child’s name is or is not the same as the parent making the application do not generally carry much weight.

(i) The reasons for an earlier unilateral decision to change a child’s name may be relevant.

(j) Any changes of circumstances of the child since the original registration may be relevant.

(k) In the case of a child whose parents were married to each other, the fact of the marriage is important and I would suggest that there would have to be strong reasons to change the name from the father’s surname if the child was so registered.

(l) Where the child’s parents were not married to each other, the mother has control over registration. Consequently, on an application to change the surname of the child, the degree of commitment of the father to the child, the quality of contact, if it occurs, between father and child, the existence or absence of parental responsibility are all relevant factors to take into account.

Each case will be decided on its own facts and with the welfare checklist being the court’s paramount consideration. The higher courts are increasingly supporting the idea that a child’s name should reflect both their maternal and paternal heritage – as has become law in Italy. For example, in the case Re H (Child’s Name: First Name) [2002] EWCA Civ 190, the judge said [at paragraph 13] that a child’s surname is of ‘particular significance’ because it ‘denotes the family to which the child belongs’. In the case of Re R (a Child) (Surname: Using Both Parents’) [2001] EWCA Civ 1344, the judge said, “In my judgment, parents and courts should be much more prepared to contemplate the use of both surnames in an appropriate case, because that is to recognise the importance of both parents”

In Practice

Whilst the case law seems to favour the recognition of both parents when deciding on a child’s surname, applications to change a child’s surname are considered by lawyers to be ‘roll of the dice’ type cases. Much may depend on who is hearing the case and, of course, the specific circumstances of each case. It is therefore very difficult to advise clients on the likely outcome. The expense and uncertainty is therefore inevitably off-putting to prospective applicants. To some, however, it is worth the risk.

Edwards Family Law is a niche London-based firm specialising in complex family law cases. To find out more about divorce and financial settlements, please phone +44 (0)20 3983 1818 or email contact@edwardsfamilylaw.co.uk. All enquiries are treated in the strictest confidence.