A consent order is a court order that reflects the financial agreement that divorcing couples have reached and which they want to put before the family court for the anticipated approval of the Judge. The order would normally be drafted by a divorce lawyer and would detail how your property, income and all other matrimonial assets will be divided when you divorce. These could include the former matrimonial home, investments, savings and pensions and depending on the circumstances might include child and spousal maintenance.
What are the benefits of consent orders?
Your consent order will have the force of law and so will be enforceable if your ex does not keep to their side of the bargain.
A consent order can help you avoid any financial disputes in the future if it is drafted so it leaves no room for disagreement. It can provide finality so you do not need to worry about your ex making further financial claims against you in the future (including claims against your estate).
If you are able to reach agreement with your spouse during your divorce proceedings (or after your divorce proceedings have finished) a consent order can be approved by the family court without the cost of contested court hearings with the attendance of divorce lawyers and without the submission of large amounts of expensively assembled evidence to the court. It can be a paper exercise in its entirety, which reduces the amount of stress and anxiety you feel as well as substantially reducing your legal costs.
Your consent order should provide you with “peace of mind” and allow you to move on after your divorce.
There are alternatives, and many people reach agreements on how to divide their finances without the input of the court. For example you may enter into a separation agreement or a nuptial agreement. Such an agreement is still given weight by the Family Court if a party seeks to break their side of the deal. However, it is preferable that agreements you reach around the breakdown of your marriage are turned into divorce consent orders. This is because the only way to make your divorce settlement enforceable and to protect yourself from future financial claims is to convert your agreement into an order of the family court. As a consequence, its much safer o have your agreement turned into a consent order by making a “consent application” to the court.
What sort of orders can the family court make?
Some (but not all) of the financial orders the court can make are as follows:
- Financial assistance such as spousal maintenance and cash lump sums
- Transfers of property such as the matrimonial home
- Orders for the sale of property such as the matrimonial home
- Pension sharing orders
The court also can also make temporary financial orders such as a Maintenance Pending Suite which is a temporary form of spousal maintenance.
What is a clean break and why is it important?
A clean break is an arrangement that allows you to separate without any further financial responsibility for your ex. The court has a duty to consider whether a clean break between you and your ex is appropriate, before making consent orders in divorce. If you have children, the court often expects some explanation for a proposed clean break before it can be persuaded that your divorce settlement is fair.
Your consent order may contain other things such as “recitals of fact”, which will appear in the preamble to the order. These record matters of fact on the face of your consent order, which may be helpful for the court to be aware of. For example, you could record the fact that the former matrimonial home has already been sold and the proceeds divided between you in specified shares. Alternatively, you could record an agreement you have made that is part of the overall settlement, such as how the contents of the family home would be divided up.
What is the procedure for an application for a consent order?
When the wording has been agreed and you have signed the consent order, the application for a consent order (“consent application”) can be made online if divorce proceedings have already been started via the family court’s online system. This can only occur when the “conditional order” (once known as the decree nisi) has been made by the family court. The applicant must be legally represented
Your consent order will only come into effect when there is a “final order of divorce” (once known as a decree absolute).
What is a statement of information for a consent order and why is it necessary?
When submitting a consent order to the court each party must file with the court and serve on the other a “statement of information for a consent order “ also referred to as a Form D81. This can be obtained from the GOV.UK website. The Family Court encourages you to submit one joint form rather than two separate forms. Your statement of information must be signed by both the divorce applicant and the respondent to prove that they have read the contents of the other’s statement.
Your statement will provide the following information for the judge so that they can decide whether the consent order is a fair settlement and one that reflects the current state of family law:
- Details about the parties’ marriage.
- Details of the parties’ and children’s dates of birth.
- An explanation of how the agreement was reached.
- The parties’ current capital and income.
- The parties’ capital and income after implementation of the consent order.
- The reasons for the proposed division of assets.
- How each party will support themselves if maintenance claims are to be dismissed.
- A summary of where the parties and children will live.
- Details of any new relationships.
How often does a Judge reject a consent order?
Very rarely. However, when the court receives and considers your application for a consent order upon divorce it is not merely engaged in a rubber stamping exercise. The court has a duty to consider whether a draft consent order represents a fair outcome and will not necessarily approve a consent order just because the parties agree the terms. However, if the order is drafted by competent divorce lawyers, the family court is very likely to give its approval and will be “heavily influenced by what the parties themselves have agreed”.
The court will approve a consent order unless it has reason to think there are circumstances into which it should inquire. However, a Judge in the Family Court is under no obligation to make inquiries or require evidence. They are entitled to assume that parties of full age and capacity know what is in their own best interests, particularly when they have legal representation.
Usually any queries from the family court can be dealt with by correspondence drafted jointly by the parties. In exceptional circumstances the court will convene a short hearing of around 20 minutes in duration so you and your ex can explain why you want your proposed settlement, before a final decision is made by the Judge.
One concern for the court would be when the primary carer of a child has agreed to a “clean break” where there are children of the family. In these circumstances the courts will usually not refuse a consent order but might be more likely to inquire into the reason why because it’s unusual for a clean break to be imposed where there are young children.
What if I don’t get a consent order at the end of my divorce?
If a consent order is not made by the court, then whatever you have agreed with your ex and no matter how amicable the two of you are, there will remain a possibility that in the future they could make a claim for a share of your property, income, or other assets such as your pensions. Having your financial settlement mirrored in a consent order gives it legal force and reduces the risk of your ex ever changing their mind. Furthermore, a clean break order will sever the financial ties between you.
How can Lincolns Family Law help?
We can act on your behalf to negotiate a divorce settlement with your ex or their divorce lawyers. We can draft your consent order and statement of information for a consent order for you and submit it to the court on your behalf. We will also deal with any questions the court may have in relation to your consent application. Alternatively, if you reach agreement at mediation and you want your matrimonial settlement turned into a consent order and sent to the court, then we can also assist. If you need legal help with your financial settlement or a consent order contact us using our online enquiry form or call on 01403 788435 for a free no obligations chat or to book a fixed fee consultation to discuss your situation in more depth.