A consent order in the context of financial issues arising from divorce, is an order setting out the financial settlement that has been agreed between a couple.
Consent order
A consent order must be approved by the court before it is binding. It can be sent to the court for approval at any point after a conditional order in the divorce has been granted by the court. Financial matters cannot be fully resolved and recorded in a court approved consent order without divorce proceedings having first been issued.
An agreed consent order, when submitted to the court for approval, is sent with a Statement of Information form (D81). The D81 provides a rundown of the couple’s respective income, capital and pensions positions both before and after the proposed consent order takes effect.
By reference to the D81, the judge considering the consent order can determine whether the consent order is fair.
When considering whether to approve the consent order, a judge is to have regard to a number of factors. Fairness is the key consideration for the judge however. The D81 needs to be drafted in such a manner that will help the judge make that determination.
Once a consent order has been approved by the court, its terms are legally binding upon the couple.
Most consent orders include the following:
Recitals
These tend to set out matters than are agreed between a couple, and other matters of fact that could be useful for the court to know. For example, amongst more standard clauses, there is often a recital recording the fact that the couple agree that neither of them have an interest in assets owned by the other save as referred to elsewhere in the consent order.
Undertakings
An undertaking is a legally binding promise to the court, often covering off matters that cannot suitably be framed as an order. For example, one party might undertake to discharge arrears on a loan agreement, for example.
Orders
Court orders are the core component of the consent order, dealing with the main financial adjustments needed for settlement. They can cover asset transfers or sales, maintenance and pension arrangements. Crucially, they include clean breaks, bringing to an end the couple’s abilities to bring financial claims against each other.
Consent orders can be complex documents to draw up. If you have any queries in respect of consent orders, or are contemplating divorce more generally, please contact our family finance team and we would be happy to help.