You can ask our solicitors online for advice on consent orders using the question box on the front of our website or the following free legal advice guide may answer your questions.
Consent Orders are granted by the court in situations where a couple have divorced but who have reached an agreement in relation to their finances without legal intervention. A consent order is typically used when divorces are amicable and the couple are willing to discuss and reach an agreement on assets, income and property.
Once issued, these orders will make an agreement legally binding resulting in an official, legal settlement which will prevent either party from making a future claim against the other.
Consent Orders Explained
When a couple decide to divorce, consideration will be given to how assets, income and property will be divided between the two. Sometimes this can be an area of contention, stress and disagreement. Ideally, a couple will be at a stage where they are on speaking terms and they can discuss and make arrangements for their finances.
That said, sometimes there is a significant breakdown in communication where a meeting or discussion between the two is not possible. In this situation, it is for the court to make an assessment of finances and then make a decision on behalf of the couple. This route however is longer, more challenging, stressful for both parties and of course, costly.
It is always recommended to obtain a consent order even if the couple going through divorce agree on financial arrangements. This is to safeguard each partner in the future from a legal perspective. In the absence of a consent order, one partner may decide to make a claim in the future against their ex, particularly if there is a substantial change in circumstances surrounding finances such as a job loss for example.
Where a consent order does not exist, a former spouse is able to submit a financial claim even after the divorce has been finalised.
Content of the Consent Order
The Consent Order will include a number of key details. It is important that they are through to ensure that all finances have been covered. These orders can be used whether the couple have decided for a clean break settlement or spousal maintenance payments.
Specifics that should be covered in the order include:
- The Family Home – If it will be sold after the divorce, whether one partner will remain there, and how any equity will be divided.
- Personal Possessions – How these will be divided including furniture and other physical items owned by the couple
- Finances – Including investments, business interests and savings
- Debts – Who is responsible for the debts (including mortgages) and how these debts will be divided
- Pensions – Arrangements for sharing pensions
- Agreements – Whether the couple will opt for a clean break or spousal maintenance agreement
- The order should also state that the agreement is legally binding and final. This will prevent any future claims being brought by either partner.
Obtaining a Consent Order
The first step in the process to obtain a consent order is to enter into a discussion about finances and assets. A couple who are on good terms and able to talk through matters can reach an agreement between themselves identifying how the assets and finances should be split. When an agreement has been reached, a solicitor will then convert the agreement into a consent order.
This order can be requested at any stage after the decree nisi has been issued. It is strongly recommended that couples obtain a consent order before the divorce is finalised and the decree absolute is issued.
The couple will then need to complete what is known as a notice of application for a final order in addition to the completion of a statement of information form. Collectively, these documents allow the couple to list all of their finances and income. Once complete, they are submitted to the court along with the draft consent order and court fee which is less than £100 as of January 2022.
Upon receipt of the documents, a Judge will review the terms outlined in the agreement and ensure that they are both legal and fair. They will also raise any areas of concern. Where the judge has questions for the couple, these may be submitted in writing, or if the judge prefers, they may call a hearing.
Often, the hearing will be called if the judge believes that an agreement is heavily weighted in favour of one partner. Only when the judge is satisfied that the content of the agreement is fair to all and legal, the consent order will be sealed or granted which makes it legally binding.
Changes to the Order
If an order is to become legally binding, it must be made in good faith and without pressure or coercion by one party to the other. Both parties are actively encouraged to participate in equal negotiations and make as many changes to the agreement as necessary before it is signed and the order sealed.
When an order is sealed it can no longer be changed as this is the stage when it becomes legally binding. The only situation when the agreement can be changed is if the former spouse provides their consent.
In terms of challenging the order, there are some specific situations when this can apply such as:
- Dishonesty by the former spouse. This could include for example, include a situation where the former spouse was not truthful about their financial assets or they failed to disclose significant assets.
- Fraud or misrepresentation. Where the content of the order was misleading such as incorrectly valued investments or assets that were not priced correctly.
- Mental capacity. One of the signatories of the agreement lacked the mental capacity to make the decision or the agreement was made under duress.