What is the legal effect and enforceability of a Consent Order?
Yes, Consent Orders are legally binding and enforceable in the same way as if they had been made at the end of a contested final hearing by a court. There is essentially no difference between the two. In other words, if either party refuses to comply with any of the provisions contained in the document, then the other party may bring the issue before the court and ask the court to enforce the Consent Order.
Most of the time, though, it is the case that both parties comply with the court order once it has been issued. Generally, the parties to Consent Orders are willing to follow them if they were made by consent, because the Consent Orders are based on something they agreed to as a matter of principle.
Having a Consent Order regarding the future care arrangements for children is very different from having a parenting plan. A parenting plan is neither legally binding nor enforceable, and is often drafted in a way that prevents it from being enforced anyway. During mediation, parenting plans are usually drafted that are acceptable to both parties. Then they ask us to rewrite the document in a way that can be enforced, namely as Consent Orders. Their parenting plan largely guides the obtaining of Consent Orders, and both sign off on that.
How do I enforce a Consent Order if my ex does not comply?
As far as possible, we believe that court proceedings should be avoided to the maximum extent possible. In the event that your former partner is not complying with the Consent Orders, the first thing you should do is speak with them, either personally or through mediation, or even through a lawyer, to see if arrangements can be made to ensure that the Consent Orders are followed. There are times, however, when this is not possible, so the non-defaulting party must apply to the Family Court to enforce their Consent Orders.
The court requires you to submit an application detailing the Consent Order or Orders that you claim have not been complied with, and an affidavit is required to support your application, which describes the manner in which you claim the Consent Order has not been adhered to. In response to your application, the other party can file a response. Court will set the matter down for a hearing and decide whether or not the Consent Order has been followed. Non-defaulting parties will then be granted the remedy they seek through Orders made by the court.
Therefore, if one party fails to pay the other party money for their interest in a property and refinances that property into their name in default of the Consent Orders, the non-defaulting party may seek the sale of that property by the court in order to receive the amount that they are entitled to.