What is a Consent Order and do I need one when getting divorced?

What is a Consent Order?

A consent order is an order made by a Judge approving a financial agreement between you and your husband/wife/civil partner.

The consent order explains to the court how you have agreed to divide the matrimonial assets, such as money, property, pensions and income. The order can also include details on child maintenance payments and any other relevant terms of the financial agreement, such as a division of contents in the family home.

What happens if I don’t get a Consent Order?

If you do not obtain a consent order reflecting the terms of the financial agreement, the following potential consequences exist:-

1. Your respective financial claims against each other will remain open (even if you finalise the divorce). This means that either of you could make a financial claim against the other at any point in the future unless the person seeking to rely on those claims dies or remarries. There is always the possibility that circumstances could change in the future and, because there is no limitation period (i.e. deadline for bringing a claim) as to when a husband/wife/civil partner can issue an application for financial relief, this creates a huge amount of uncertainty. There are a number of recorded cases of claims which have been made for a financial application to the court years after separation or divorce (such as in the case of Vince v Wyatt). By submitting a consent order to the court providing for a total ‘clean break’ your financial claims against one another are dismissed, which prevents the risk of an application being made in the future.
2. An informal agreement between you and your husband/wife/civil partner is not legally binding and therefore may not be enforced by the court if your husband/wife/civil partner subsequently seeks to renege on the agreement or fails to comply.
3. Research suggests that 70% of couples do not discuss their pensions prior to divorce and that half of couples do not go through the court system to formalise their agreement. This means that you could be missing out on certain entitlements which you otherwise could have benefitted from or at least have known about if you had sought legal advice and/or formally addressed the financial matters with the court.
4. Even if there are no real assets within the marriage/civil partnership to divide, it may still be advisable to sever all financial ties arising out of the breakdown of the marriage/civil partnership and obtain a ‘clean break’ so that there is absolute certainty moving forward that your former husband/wife/civil partner will not be able to make a financial claim against you in the future.

How do I get a Consent Order?

First, you and your husband/wife/civil partner will need to reach an agreement as to how the finances should be split. You could agree this between yourselves, or seek assistance from a family solicitor to negotiate a settlement with your husband/wife/civil partner or their solicitor on your behalf, and/or you could attend family mediation where an independent mediator will help guide you both towards a resolution.

Once you and your husband/wife/civil partner have reached an agreement, this can be drawn up into a binding consent order and submitted to the court with certain other documents in support. It is advisable to seek assistance from a family solicitor as to the drafting of the consent order and other documentation to ensure it accurately reflects your intentions. A solicitor can also advise you if the agreement you have reached is fair and reasonable in the circumstances (providing there has been full and frank financial disclosure from you and your husband/wife/civil partner).

The Court does not have the power to approve a consent order until Decree Nisi (an order by a court of law stating the date on which a marriage will end unless a good reason not to grant a divorce is produced) has been pronounced within the divorce proceedings.

As soon as the Decree Nisi has been pronounced in the divorce proceedings, the signed consent order can be submitted to the court with the supporting documents for a Judge to approve.

If you are not able or willing to get divorced now, but you would still like to deal with the finances, it may be advisable to enter into a separation agreement to best protect your position until such a time as there is a binding consent order in place.

If you would like to discuss the issues in this article please contact the Family Team on 01603 610911.

Note: The content of this article is for general information only and does not constitute legal advice. Specific legal advice should be taken in any specific circumstance.