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. The order sets out how finances and assets are to be shared and any ongoing financial obligations between the parties.
Consent order
A consent order must be approved by the court before it is binding and enforceable. 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. As such, 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 pension positions both before and after the proposed consent order takes effect. The judge will use this D81 to consider if the consent order proposed by the parties provides a fair outcome.
When considering whether to approve the consent order, a judge is to have regard to a number of factors including the parties’ resources and needs. The key consideration for a judge is fairness. The D81 needs to be drafted in such a manner that will help the judge make that determination. Our family finance team are specialists who will be able to assist in completing this form.
Once a consent order has been approved by the court, its terms are legally binding upon the couple and can be enforced if there is non-compliance.
Most consent orders include the following:
Recitals
These tend to set out matters that 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 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. A breach of an undertaking is potentially punishable with imprisonment.
Orders
Court orders are the core component of the consent order, dealing with the main financial adjustments needed as part of the settlement. They can cover asset transfers or sales, maintenance and pension arrangements. Crucially, they include what are called “clean breaks”, bringing to an end the couple’s abilities to bring financial claims against each other in respect of the marriage.
Why are consent orders important?
As well as recording the financial agreement between a couple, and it therefore becoming enforceable, it is also important to obtain a consent order to protect yourself against any possible future claims from your ex-spouse. If a financial agreement is not put into a consent order, then it leaves the door open for your ex-spouse to potentially make a further claim against future inheritance, for example.
Consent orders can be complex documents to draw up. If you have any queries about the information in this article, or are contemplating divorce more generally, please contact our family finance team on 0345 450 5558 or enquiries@stephens-scown.co.uk and we would be happy to help.
Or if you have received a draft consent order and are not sure what to do, Tamsin Best, a solicitor in the family finance team, explains here.