What is a Consent Order?

If you have been to see a family lawyer, you have probably heard of a consent order , and encouraged to enter into one upon divorce.

A consent order is a binding court order, entered into, as the name suggests, by agreement (consent). It is usually drafted by a solicitor, Judge or legal adviser. Consent orders can be obtained in any civil proceedings, but for the remainder of this blog only those in divorce proceedings will be considered.

The only way to close the door to financial claims on divorce is by getting an order, either by consent or Judge-imposed at the end of contested proceedings. If a couple deal with the divorce aspect only, and do not obtain an order dealing with the finances, one of them could, at a later date, revive these and go after the other party. This could happen even if they already have divided the finances by agreement, but simply didn’t get this set out in a consent order.

A consent order will begin with the name of the Court, case number and Judge who is making the order. It will go on to name the parties and define any terms that will frequently be used throughout the order, such as the address and title number of the family home. After this, the operative part of the order begins. In this part you can find the individual orders being made, which may include an order for sale of property, an order for maintenance or a pension sharing order etc.

There is an upfront fee of £50 to submit a consent order to the Court. It will be submitted alongside a Form A and a Statement of Information. There is also the £550 court fee required to submit the divorce petition itself (if you are not already divorced). These fees are the absolute minimum that will be paid, but most people will also spend on legal fees to have a solicitor either advise on the document or draft it as required.

Solicitors fees will entirely depend on the complexity of the agreement and whether the parties will be exchanging financial disclosure before entering into any binding final agreement.

In principle, a consent order can be drawn up and signed by both parties very quickly – as long as there are not too many disagreements as to the specific terms. However, the draft order cannot be submitted to the Court until the Decree Nisi of the divorce has been pronounced. This may mean that there is a wait of between 3-9 months before the order can be submitted for approval. Although this may seem like a long time, if negotiations are ongoing throughout this time, then it can pass by relatively quickly.

If you are already divorced and have your Decree Absolute, but didn’t sort out financial matters at the time, then there is no need to wait for Decree Nisi, and the order can be sent to the Court as soon as it is agreed and signed by all parties.

The introduction of the new online submission process now means that consent orders can be approved by the Court in less time that it would have taken with the traditional paper submission.

It is always sensible to draw a line in the sand when it comes to splitting your financial matters in a divorce. If you are selling property, or transferring property, making a pension sharing order or paying over money, then you are advised to obtain a Consent Order, to make sure the other party carries out what they have agreed.

Most of all, obtaining the order will stop either spouse attempting to claim for more money or assets at a later date, which gives both parties protection once the divorce is finalised. You must be at the Decree Nisi stage of your divorce before you can lodge a Consent Order with the Court.

Only by obtaining a court order to separate your finances will you sever financial ties from your spouse, as getting a divorce alone does not do this.

At the outset of any proceedings or negotiations, there is a duty of full and frank financial disclosure from both parties.  This means that it is necessary for you and your partner to be completely honest about your financial positions and to disclose all relevant information. This obligation continues throughout the proceedings, so you may have to update your financial disclosure on a regular basis.

There are a couple of core reasons why providing financial disclosure is important:

• It will enable your lawyer to provide you with sound legal advice as to what would be a fair and reasonable settlement;
• It helps to ensure that there are no obvious hidden assets or anomalies. Sometimes there is a genuine mistake when an asset it not disclosed, but there are times when a party is trying to deliberately hide or undervalue assets.

Financial disclosure can be provided two different ways. Firstly, it can be done voluntarily, without issuing Court proceedings, through solicitors. A settlement can then be negotiated. Alternatively, financial disclosure can be provided during mediation.  However, if a party refuses to provide financial disclosure on a voluntary basis, then an application to the Court can be made force that party to cooperate, otherwise they may be faced with financial sanctions.

The most common vehicle for providing financial disclosure is by completing a Form E. This is a detailed form setting out assets, liabilities, pensions, income, any business assets and outgoings, together with supporting documentation. Each party will complete their own Form E, which will then be exchanged simultaneously on a date to be agreed.

Once the order is approved and the parties receive a stamped copy from the Court, the terms of the order can be implemented. The parties can take steps to sell a property that is to be sold or could effect a transfer of shares or a pension, for example.

As it is advisable to wait until the sealed consent order is received before finalising the divorce. Once all financial matters are sorted and the consent order approved, the Petitioner can apply for the Decree Absolute. The sealed order and Decree Absolute will be needed by any pension company who are to put in place a pension share.

Until such time as a consent order is stamped by a Judge, it is in principle possible for one party to back out. If this happens, the party who says an agreement was reached can apply to the Court for the other to show why that agreement should not be put in place. The Court will look at the course of dealings between the parties to see if they were ‘ad idem’ – in agreement. Where discussions were written down in letters, emails, etc. this may be easier to evidence than discussions around the kitchen table or over the telephone.

It is important to note that the party who claims that the agreement is no longer valid must provide a true substantial reason as to why the order should be changed, such as the discovery of an un-disclosed asset or a very sudden and dramatic change in circumstances.

Once a consent order is approved and made by the Court, it is valid in perpetuity, unless one party later successfully applies to have it set aside. This is extremely rare and in general, once an order is made, there is no going back – which is why it is extremely important to be fully aware of the other person’s financial position and to take legal advice.

Most consent orders will endeavour to end with a clean break clause, which will allow the parties to be financially independent from each other in the future.

The parties will need to be fully aware of each other’s financial circumstances in order for the agreement reached to be safe from any later accusations of material non-disclosure. For the drafting itself, it is useful to have on hand any identifying information for pension schemes that are to be shared, properties, mortgage accounts etc.

In order to draft the statement of information, the parties will need to know the up to date values of all of their assets – so should obtain a market appraisal for their properties and request CETVs (cash equivalent transfer values) for pensions, if applicable.

A consent order can only be made upon Decree Nisi (which is the initial stage of the divorce but does not dissolve the marriage), although the order’s terms do not come into effect until the Decree Absolute is granted.

For anyone considering separating but not getting a divorce until later on – perhaps so that they can petition under two years’ separation instead of unreasonable behaviour – it will not be possible to get a consent order until the divorce process is started. This means that they remain vulnerable to claims during this time. However, the parties can enter into a separation agreement, and although this is not the same as a consent order, provided it is fair and has been entered into correctly, it can form the basis for any future consent order once divorce proceedings have been instigated.

As with all legal processes, you do not need a lawyer to be able to get a consent order, however due to complexity of the document and the lasting consequences that it might have, it is strongly recommended that you have a lawyer’s assistance when negotiating an agreement and considering a consent order. Having one of our family law experts on hand will help to ensure that everything is included which needs to be, and that you are aware of any potential consequences and future obligations.

The Judge has discretion as to whether to approve a consent order and may reject it if he/she thinks it may be unfair. At the same time as submitting a consent order for approval, the parties must also submit a Statement of Information form (D81) which sets out in overview their assets and income. The Judge looking at the draft consent order will consider it alongside the statement and will look at the net asset split and how much each party will be left with after implementation.

However, a Statement of Information is only needed if financial remedy proceedings have not been issued within the Court arena. This is because during the process of financial proceedings, the parties will have to provide full and frank disclosure to the Court.

In the majority of cases where lawyers have been involved in negotiations and drafting, consent orders pass through the Courts without any issue. However, if an application is rejected, the Judge will set out the clear reasons why and there will be an opportunity for it to be re-submitted and fast-tracked back to a Judge, without having to go back to the bottom of the pile. The most common queries from Judges are for the parties to explain how one or both will rehouse on the proposed asset split, or why the assets have not been split 50-50.

If you would like to discuss consent orders in more detail, or have any further questions that have not been answered above, please contact one of our family lawyers today.