Consent Orders

A consent order (sometimes referred to as a financial consent order or divorce consent order) is a legally binding document made by a court confirming an agreement reached by a divorcing couple about their finances A consent order can be as straightforward or intricate as a divorcing couple sees fit. It will detail how joint assets are to be divided and will cover money, property, investments, pensions and savings. It may also include details of any spousal maintenance or child maintenance payments.

Even if you and your former partner have reached a mutual agreement on how your assets should be divided when you divorce, it is still absolutely essential that this is confirmed in a consent order.

Without a consent order in place, either party could change their mind about the agreements they have previously made without any repercussions. Both parties could also make a financial claim against the other in the future.

To apply for a consent order when you divorce there is a set process to follow. A draft consent order is prepared, normally by a solicitor experienced in divorce finances. Both parties are required to sign to say they agree with the details set out in the consent order and they must also complete something called a statement of information form (D81). This form provides full details of both parties’ financial affairs to enable the judge to decide whether the arrangements set out in the consent order are fair.

If prepared by your Woolley & Co solicitor the consent order will be filed with the court electronically and then reviewed by a judge.

In terms of timing, the consent order is usually filed with the court after your divorce has been accepted by the court, i.e. once the Conditional Order (formerly known as the ‘decree nisi’) has been granted.

It is sensible to pursue a consent order at the same time as, or soon after, you initiate your divorce proceedings to ensure there is no delay in obtaining the order from the Court.

In a consent order, the parties set out any financial agreement that they have reached at that time. It is the clean break part of the order that formally dismisses the right for you and your ex to ask for more money from each other in the future.

You may be presented with a draft consent order by your ex-partner or their solicitor. At this stage, you can ask for changes to be made or enter into negotiations to reach an agreement.

Once the consent order is approved and sealed by a Judge, it is legally binding and cannot normally be altered or varied in any way. However, there are examples of where it is preferable for both parties to do something different to what was originally agreed in the consent order.

For example, your consent order says that you will sell the family home but decide instead to transfer it from joint names to one of the parties, or you decide to pay a lump sum instead of ongoing maintenance payments. In cases like this, you will need to consider the content of the original consent order and may need to have an agreement varying it or a further consent order submitted to the court for approval.

If you are in this position, your Woolley & Co lawyer can help you through the process, advise on your options and prepare the necessary paperwork.

If a judge deems a consent order to be fair to both parties, it will be formally approved and made into an order. Once sealed, a copy of the consent order is sent to both parties and their legal representatives for their reference.

It will then fall on the parties to carry out any of the terms included in the consent order, such as the sale of the family home.

The time it takes for a judge to approve and seal a consent order can vary significantly depending on individual court workload. It can take anywhere from a few weeks to a few months. Your Woolley & Co lawyer will be able to advise you on what to expect.

A judge will only approve your consent order if they think it is fair to both parties. If they do not think it is fair, they can ask that it be changed and resubmitted. If both you and your ex have had legal advice on the contents of the consent order (and followed that advice), it is less likely to be rejected.

Once approved, a consent order will be valid and enforceable indefinitely. The exception to this is any child maintenance included in a consent order. This is only legally binding for 12 months, after which time the Child Maintenance Service (CMS) would become responsible for this element of the order.

Without a consent order, your ex can change their mind about your financial agreement at any time (even if you have already put it into effect).

If your consent order does not include a clean break, if you win the lottery, receive an inheritance, or simply get a better job and start earning more, then your ex-spouse might be able to claim a share of your newfound wealth.

Once drafted, approved and signed by both parties, the consent order is submitted to the Court for approval. The procedure is very straightforward and does not involve either party attending court in most circumstances. The Court may ask a few questions before the Order is approved, but these can be dealt with simply by letter.

If one of the parties fails to carry out the obligations set out in the consent order, this is a breach of the order. The other party can ask the court to have the consent order enforced.

If the court agrees that there has been a breach, then the person in breach will be required to meet the terms of the order and cover the costs involved in bringing the case to court.

In some circumstances, the person breaching the order may be unable to fulfil their responsibilities, for example, if they have lost their job and are unable to make maintenance payments in which case the court may allow the party to reduce or stop payments until they find a new job. This would be reflected in an order.

If you believe your consent order has been breached and need help with enforcement, speak to Woolley & Co on 0800 321 3832.

Consent orders are not a legal requirement, meaning it is possible to get a divorce without having an order in place. The process for applying for a divorce is separate from the process for applying for a consent order.

Regardless, we would still strongly recommend making an application for a consent order during divorce, no matter what your circumstances may be.

Even if you and your former partner are on amicable terms and are able to reach an informal agreement about your finances, you do not know what the future may have in store.

Consent orders can provide certainty for the future and ensure that your wealth is protected in the event that there are any disagreements between you and your former partner in the future.