A consent order is a legally binding document that formalises the specifics of an agreement reached between a couple in relation to their finances following a divorce or dissolution of a civil partnership.
It is absolutely critical that when a couple do divorce, or apply for their civil partnership to be dissolved, that they also enter into negotiations with regard to their finances. If an agreement can be reached then this should be accurately recorded within a consent order. It is important to note at the outset that whilst divorce proceedings and resolving the finances run parallel to the other; the divorce/ dissolution proceedings do not automatically resolve the finances and so consideration must be given to entering into negotiations regarding a financial settlement as soon as possible.
So, what is a consent order and how can a couple obtain one?
Is it important to obtain a consent order following divorce/ dissolution of a civil partnership?
The simple answer is yes, it is.
It is a common misconception that your finances are sorted out as part of the divorce/ dissolution proceedings. It is, of course, possible to get divorced without resolving the financial arrangements although this is not advisable.
The risk that a couple run is that if they do not deal with financial matters or resolve financial claims at the time of the divorce, then one spouse may bring a financial claim against the other many years down the line when circumstances could have changed considerably.
What is a clean break consent order?
A clean break consent order terminates the ties between a couple on a financial basis once the order is approved. Without a clean break order then either spouse could make a claim against the other at any stage in the future, even after the divorce has been finalised. The risk, therefore, is that one spouse may come into a significant sum of money, for example, several years after the marriage and the other spouse would be able to seek a share of the same.
How do I apply for a consent order?
Once a couple has reached an agreement in respect of their finances then that agreement will be drafted into a consent order. The best advice is for the couple to seek legal advice and instruct a solicitor to draft the consent order accordingly. The consent order can only, however, be submitted to court once decree nisi/ conditional order has been pronounced within the divorce/ dissolution proceedings. It is important, therefore, that financial settlement discussions and negotiations take place at the same time as divorce proceedings are initiated so as to try to avoid delay in obtaining a finalised sealed order from the court.
When submitting a consent order to court the couple must also complete a statement of information. The statement of information, also known as a D81 form, is essentially a snapshot of the couple’s respective financial positions. This will therefore require information in relation to assets including bank accounts, business assets and properties; debts, including credit cards and any loans; a pension cash equivalent transfer value (CETV) and information in relation to income. This will enable the judge to consider whether the agreement reached is fair and within a reasonable range of outcomes.
Is full financial disclosure required?
Full financial disclosure is not a requirement of obtaining a financial consent order. However, it is rarely advisable to enter into a consent order without a clear understanding as to what your spouse owns and so it is recommended to seek full disclosure in order to make an informed decision about entering into the terms of the consent order. It is likely that any solicitor would request that a disclaimer is signed to confirm that the spouse has chosen to enter into an agreement without the benefit of full financial disclosure and that has meant that full legal advice has been unable to be given on the terms agreed.
What happens if we cannot agree on the finances?
If an agreement is unable to be reached directly between the couple, whether that be via direct discussions; the mediation process or solicitor negotiations, then an application could be made to court for the court to ultimately determine what financial order should be made.
Can a consent order be amended?
It is standard practice for one of the spouse’s solicitor to prepare the initial draft of the consent order. If the other spouse wishes to make amendments at this stage, then this can be requested. The key, however, is that the wording of the consent order needs to be agreed between the couple before it is signed and submitted to court accordingly.
Once the court has approved and sealed the consent order then it will be a legally binding order and cannot usually be varied in any way. However, there are occasions whereby the couple may agree between themselves to act in a different way than as was stated in the order if circumstances demand and they are both in agreement. It is important that legal advice is obtained as soon as possible if variations to the agreement are required as it may require further steps being taken to reflect any agreed changes.
What happens if the consent order is breached?
If there is a breach of the consent order, then the spouse who is not in breach can issue an application to the court for enforcement. The court does have significant powers to ensure that the order is complied with, and it is possible for the successful spouse to seek that the other spouse pays their costs for the application. Note: in family cases then the general rule is that each spouse will be responsible for their own legal costs, but this is slightly different for enforcement proceedings.
Will the court always approve a consent order?
The court will usually approve a consent order online, particularly where the application is submitted by solicitors. However, in some circumstances, the court may disagree with the consent order or have further queries which need clarification before the order is approved and sealed. It is important that the judge considering the consent order understands the arrangements and agrees that it is fair and reasonable as a binding final order is being made.
The court is unlikely to dictate to the couple what they should do if they disagree with the order. Instead, the court is likely to ask questions or ask the couple to clarify a particular area / section of the order. It is thereafter down to the couple to answer any questions or potentially re-negotiate the terms of the consent order before it is re-submitted to court for approval.
Will child maintenance be included within the consent order?
Child maintenance can be included within a consent order, but it is important that the couple are aware that the court only has jurisdiction to make orders in relation to child maintenance for a period of 12 months. After that 12-month period has expired then either party could apply to the Child Maintenance Service (CMS) for a reassessment of child maintenance, which will depend on circumstances at that point in time and how the strict CMS formula is applied to those circumstances.
It will depend on a case-by-case basis whether child maintenance should be recorded within a consent order. This is usually done so as to ensure that the paying spouse does pay the agreed amount for the first 12-month period, or it can be done as proof of income for mortgage purposes.
How long does a consent order take to be approved?
It is difficult to say with any certainty how long a court will take to approve a consent order as it will be court specific and depend on that particular court’s workload. Once agreed and signed by the parties, consent orders are currently taking anywhere up to three months to be approved and sealed by the court although it may be quicker than this or indeed it may take longer if the court has queries or there is an administrative backlog. However, it is important to note that once a concluded agreement has been reached it will be accepted that both parties should be held to those heads of agreement (unless there are significant reasons why that would not be the case) and so parties cannot easily revert from an agreement once they have concluded the terms agreed.
How much does a consent order cost?
There will be both the court fee for submitting the consent order as well as legal fees if the couple take independent legal advice. The court fee for submitting a consent order is currently £53. The legal fees incurred by solicitors will depend upon the complexity of the order; the number of re-drafts required and indeed the level of the solicitor’s involvement. The spouse will be provided with a cost estimate from their solicitor for the work involved at the outset.
How long is a consent order valid for?
There is no expiry date for a consent order. It will last indefinitely as a final order.
Summary
It is important that a couple who divorce or apply to dissolve their civil partnership always consider obtaining a consent order as a part of the process. A consent order is the only way to guarantee a clean break between the couple and avoid any claims being made in the future.
It is important, therefore, that specialist advice from a family lawyer is obtained at the earliest opportunity. You can speak to a member of our Family Law team by filling in the contact form on this page.