When you hear "court order," you might think every word in the document has legal force. However, that's not entirely true. Court orders, especially in divorce proceedings, are divided into two parts: recitals and the operative (or orders) section, each serving a unique purpose.
Many find themselves puzzled by terms like consent order recitals, unsure of what they actually mean and, most importantly, how they affect the outcome of their divorce.
In this article, we aim to make this clearer, starting with the basics of what a consent order is and moving into the world of recitals, which are the narrative that explains the context and reasoning behind legally binding agreements. We’ll explore the purpose of recitals, how they differ from the enforceable sections of the order, and under what conditions they might carry weight according to recent case law.
Table of Contents
- What is a consent order in a divorce?
- What are recitals in a consent order?
- Why are recitals important in a consent order?
- Can recitals in a consent order be enforced by the court?
- What should be included in the recitals of a consent order?
- How do recitals differ from the operative part of a consent order?
- Can the recitals affect the interpretation of a consent order?
- What happens if there is a conflict between the recitals and the operative parts of a consent order?
- Should recitals be included in every consent order?
- How can I ensure that the recitals in my consent order are effective?
- Key takeaways
What is a consent order in a divorce?
When people in the UK get divorced and agree on how to split up their money and property, they put this agreement into a document called a consent order.
This is just a fancy legal way of saying that both sides agree and the court approves this plan. It covers who gets what, how much one person might pay the other regularly, and any other money matters they need to sort out.
What are recitals in a consent order?
Recitals in a consent order essentially tell us why the people involved decided to split things the way they did. They include things that the court recognised as important but can’t directly command because it doesn’t have the power to do so.
For instance, a recital might say something like, “We decided to divide things this way because one of us will be taking care of the kids more.” Or, a recital might state that both parties agree they’re satisfied with how money and property are split and won’t ask for more later.
Why are recitals important in a consent order?
Recitals are super helpful for making things clear and showing what everyone intended from the start. Plus, if there are parts to the agreement that are a bit fuzzy or hard to understand, these recitals can help figure out what was meant, making them a bit easier to follow.
In a few recent cases, the distinction between recitals and orders mattered quite a lot.
In one of these, a divorce case, they had to decide how to take care of their kids and the court ended up including some agreements about the children as recitals, not as enforceable orders. This meant that if the dad wanted to change something later, he couldn’t just ask the court to enforce the original agreement; he’d have to start a whole new court case to change anything.
So, the father was upset because he wanted these agreements to be part of the main, enforceable order. He argued that this was important because it affected how he could interact with his kids in the future. The judge agreed that this was a key issue and allowed him to appeal, focusing just on whether those childcare agreements should be moved out of the recital section into the enforceable part of the order.
In short, while it might seem like every part of a court order should automatically be enforceable, that’s not always the case. Recitals provide context and agreements that the court acknowledges but can’t enforce, while the actual orders are the parts that legally must be followed. That being said, there are nuances to this which we’ll cover below.
Can recitals in a consent order be enforced by the court?
Recitals in consent orders are usually just there to give context and aren’t meant to be rules that you must follow on their own. But, based on some recent legal decisions, if these recitals are clear about what’s agreed upon and it’s something the court could have decided on its own, then they can be enforced.
The case of BSA v NVT [2020] EWHC 2906 (Fam) highlighted that recitals can be legally binding if they spell out clear, enforceable agreements that are within the court's powers to enforce.
Here’s what happened: A mother, living with her two children, needed financial support from the father, who wasn’t following through with his commitments. She requested financial assistance under a specific law meant to provide for children, and they agreed on a consent order. This order included money for her to buy a house, along with child maintenance and other payments. However, when the father didn’t provide the money for the house as agreed, the mother took legal steps to enforce this agreement.
The father countered, saying that the details about the house weren't something the court could enforce because the law they used didn’t specifically allow for it. But when the court reviewed the case, they found that the agreements made in the consent order—especially those addressing the children’s financial needs—were clear and aligned with what the court could enforce.
In the end, the court’s decision supported the view that if the agreements within a recital match what the court has the authority to order, then they can be enforced just like the more straightforwardly binding parts of the order. This meant that the mother could indeed use the court’s power to enforce the agreements regarding the house and other financial support.
What should be included in the recitals of a consent order?
Recitals of a consent order should include:
Background information, including relevant history between the parties involved;
What each party intends to achieve with the agreement;
Any important agreements that have been made but might not be legally enforceable as part of the main order;
Why they have agreed to certain terms;
Any important acknowledgments, such as the receipt of independent legal advice, or the voluntary nature of the agreements.
How do recitals differ from the operative part of a consent order?
The 'operative' part of a consent order lists all the specific rules that everyone has to follow - like who pays what, who does what, or who gets what. This is the part that’s legally binding, meaning you’ve got to stick to it.
On the flip side, recitals are like the introduction. They give you the backstory and lay out the scene for the operative parts. They’re there to make everything clear and explain why the rules are set the way they are.
Can the recitals affect the interpretation of a consent order?
Recitals set the scene and explain why the agreement was made the way it was. They’re really helpful for clearing up any confusion in the more binding parts of the order.
If there’s something a bit unclear or open to interpretation in the main part of the order, the court can look back at the recitals to get a better understanding of what was originally intended and the situation at the time.
What happens if there is a conflict between the recitals and the operative parts of a consent order?
If the recitals and the operative parts of a consent order clash, the operative parts win out. That’s because these sections have specific, enforceable rules that everyone agreed to follow legally. The recitals, while useful for setting the scene and providing context, don’t pack the same legal punch.
When there’s a conflict, a court will mostly stick with what the operative parts say should be done. But, as we’ve seen, the recitals aren’t just tossed aside - they can still play a role in helping the court grasp the full intent and understanding that the parties had when they made the order.
Should recitals be included in every consent order?
Including recitals in every consent order isn't mandatory, but it's usually a smart move. They provide a helpful backdrop, explaining the reasons and expectations behind the agreement. This is useful for clearing up any confusion and making sure everyone is on the same page.
Plus, if any disagreements pop up later, the recitals can help explain what was meant by the more binding parts of the order. So, even though they're not required, putting them in is good practice to avoid misunderstandings and make sure everyone knows why things were agreed the way they were.
How can I ensure that the recitals in my consent order are effective?
To make sure that the recitals in your consent order are effective:
Use straightforward language to describe the background and intentions behind the agreement;
Clearly state what each party intends to achieve with the consent order;
Provide essential background information that led to the consent order;
Work with a divorce lawyer who can help craft the recitals to ensure they are comprehensive and aligned with the legal standards required for consent orders.
Key takeaways
Consent order recitals explain the reasons and intentions behind agreements in a divorce;
They may influence the interpretation of the enforceable sections of the order;
Recent case law indicates that under certain conditions recitals can carry legal weight and be enforceable.
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