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Harris, Family Law Expert
Category: Family Law
Satisfied Customers: 2851
Experience:  Family Law - Specialist in Divorce, Financial Relief and Children Matters
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I got divorced in late 2013-used a solicitor via an

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i got divorced in late 2013-used a solicitor via an online divorce provider-'clean break' consent order and court filings only ie no advice (my ex and i agreed our own deal)
i recently noticed that the consent order states that both petitioner and respondent acknowledge that they have had access to independent legal advice, which was not the case
given the length of our marriage the divorce settlement was very favourable to me vs what a court would determine in a contested scenario and my worry is that the error re legal advice in the consent order might render it capable of being set aside (application to set aside v unlikely but i like to be able to sleep at night)
however having done some research case law seems to say that any application to set aside must be made without delay and certainly within a year and clearly my ex knew that she hadn't taken advice at the time of signing the order in late 2013 so we're now more than two years on
i've also read about no set aside being permitted when the complaining party is partly to blame for the mistake (which she was)
when i took this error up with the acting solicitor he said that, advice or no advice, the judge would not have made the order unless he was satisfied with its fairness and it is therefore final and binding-i guess scenarios occur where one or both parties have taken legal advice but the judge still isn't happy with the terms agreed and refuses to make the order?
your view would be appreciated
Hi, thank you for your question. Both of you signed the agreement and it stated that you had received legal advice, which was not correct. However, a judge is highly unlikely to use that as basis to overturn a clean break or consent order. Given that the consent order has been approved, this will indicate that the judge has considered the settlement and found it to be fair for both of you.The only time that she would be able to pursue an application to set aside the order is if it is found that either of you had misrepresented your positions and that if your true positions had been made available that the judge's decision would have been different.I hope that this puts you at ease! If you found this information helpful please provide a positive rating. I will not be credited for answering your question without a positive rating. Thank you
Customer: replied 1 year ago.
so you don't think the judge would take the view that he might have sought a different order/brought us both in for discussion if he had known that she hadn't been advised?
in any event do you think that regardless of merit inaction on her part for in excess of two years would see the application to set aside thrown out?
I highly doubt that a court will accept to reopen the case only on this basis.
Customer: replied 1 year ago.
ok but just for additional peace of mind what's your view on the fact that it's more than 2 years later?
If there was merit to pursue then the amount of time does put her at a disadvantage
Customer: replied 1 year ago.
so what you're saying is that there isn't merit based on the mistake in the order re advice and the lapse of time is just icing on the cake?!
Yes - If you found this information helpful please provide a positive rating. I will not be credited for answering your question without a positive rating. Thank you
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