What is a Consent Order?

A financial consent order is an order made by the court to make the financial agreement which you and your former spouse have already reached, legally binding. The order will confirm what is to happen to your property, pensions and other assets when you divorce. It also specifies whether maintenance ought to be paid and when the financial ties between you both will be severed.

Some divorcing couples that agree on how their finances will be divided voluntarily, fail to apply for a consent order to reflect their agreement and ensure it is legally binding. This raises the question of – what if your former spouse changes their mind in the future, despite the fact you thought you had an agreement in place? Without a consent order, even after you have divorced, your former spouse could still make a claim for a share of your assets, property, income or pensions.

Why do I need a Consent Order?

It is often believed that as part of your divorce proceedings, your finances will be divided by the court. However, this is incorrect. You must apply separately for the finances to be dealt with and without completing this significant step, you will leave yourself open to future financial claims by your former spouse whether in life or death.

It is not compulsory to obtain a consent order when getting divorced. You can divorce your spouse without agreeing the financial arrangements, however, this is not recommended, as this can leave you open to significant complications in the future. For example, even if years after you have divorced, you win the lottery or a family member dies and you come into some inheritance – your former spouse can make a claim against these even though you may have already divided your finances when you originally divorced.

One objective of a consent order is to conclude your financial responsibility towards each other with a view to moving individuals towards financial independence . The Court has a duty to consider whether a clean break should be achieved and will weigh up all factors in deciding whether a clean break is appropriate. In some cases where maintenance payments are required, a clean break is not always suitable. However, the enactment of the Matrimonial and Family Proceedings Act 1984, which introduced s.25A into the Matrimonial Causes Act 1973 has been described as a ‘statutory steer’ towards a clean break where possible.

How do I obtain a consent order?

In order to obtain a consent order (which is an order reached by “consent”), you must be in a position where you and your former spouse are in agreement in relation to your finances. Once you are in this position, you can then request the court to approve your agreement and draft order. However, it is not a given that the court will approve the order, as they may decline if it is not correctly drafted or if the court deems your agreement to be unfair. The court may request you to both attend court to explain your reasoning behind reaching such an agreement if it is unfairly favouring one party over the other.

There are advantages to having a solicitor, who is experienced in family law, to draft the consent order to ensure it is drafted correctly and fairly to avoid the risk of it being rejected by the court.

Please be aware, you can only apply for a consent order once your conditional order has been made. Whilst it is recommended that your financial affairs are dealt with prior to the final order being made by the court, you can apply for the consent order at any stage of your divorce, but it may be in your best interest to ensure this is dealt with prior to the final order being issued.

What if my former spouse and I cannot reach an agreement?

If you cannot come to an agreement between yourselves, then there are options available to you which may assist with reaching an agreement outside of court. These options are; mediation, collaborative negotiations or solicitor-led negotiation. By using one of these options, parties are often able to reach an agreement in relation to the division of finances.

However, if your situation is particularly volatile and acrimonious and you are still unable to come to an agreement, then you can request for the court to make this decision for you. The decision will then be legally binding on you both. However, it is always recommended to try and reach an agreement outside of court as this can become costly.

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