Consent Orders in Divorce – What You Need To Know
What is a financial consent order?
A consent order is an order made by a Judge in divorce proceedings, where both parties have agreed their financial settlement and agree to a financial order being made without the need for a court hearing.
A consent order agreement will explain to the court how you intend to split assets such as money, property, pensions and savings.
The order can also include details on spousal and/or child maintenance arrangements, which enables the family court to enforce these if the maintenance is not paid.
To separate your finances in a divorce, you need to reach a financial agreement and turn that into a legally binding court order that is different and separate from the divorce proceedings.
Why consent orders are important
If you don’t obtain a financial order following a divorce then the agreement you’ve reached isn’t legally binding and therefore the court cannot enforce it.
This means that any agreement reached on property sales, lump-sum payments, maintenance payments or division of pensions, for example, have no legal standing and therefore neither party is protected if these actions aren’t carried out.
A financial application can be made at the decree nisi stage of divorce proceedings and becomes legally binding when the decree absolute has been granted.
A consent order can also be filed after the decree absolute has been granted, however, it is advisable to delay applying for the decree absolute if the consent order is still in progress and not yet approved.
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, transferring property, making a pension sharing order or paying over money, then you are advised to obtain a consent order.
If you obtain a financial order from the Court then it ensures that 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.
Only by obtaining a court order to separate your finances will you sever financial ties from your spouse, as getting a divorce does not do this alone.
What can I include in a consent order?
Anything in relation to your financial situation can be included in a consent order.
The court has powers to make orders for;
- Maintenance (Child & Spousal)
- Sale or transfer of properties
- The payment of lump sums of money
- Division/split of pensions
- Debt provision
- Personal belongings, e.g. Pets, Cars
Anything the court cannot specifically order can be dealt with by way of what is called an undertaking, which is a promise to the court to do something. If this undertaking is broken, the court can enforce it, using contempt of court rules.
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Find Out Which Type of Financial Order You Need
The difference between a consent order and a clean break order
A consent order is a financial application that can include money, property and other assets. This financial order is required when there are on-going payments such as maintenance or where payments are being made, e.g. division of properties or pensions.
A clean break order is for couples that don’t have children in full-time education and have no on-going payments to make or assets to separate, for example, property divisions, maintenance payments or split of pensions. A clean break is still important as it will sever all financial ties following a divorce and prevent any future claims being made.
Things to consider before applying for a consent order
If you are in the process of divorce and are now considering the terms of your financial settlement, there are 3 things to really consider before signing the order.
1. Don’t assume a 50/50 split is fair
In most instances, starting at 50/50 is right, but don’t assume that’s right for you without looking at the finer details of your marriage, such as earning potential and childcare responsibilities.
For example, short marriages are often not split 50/50.
It would be unfair to settle for a 50/50 split if there have been inherited assets or vastly different contributions made to held assets from one spouse.
2. Don’t assume the Judge will grant your order
Couples often assume that just because they’ve agreed to a financial settlement that the Judge will grant them their order.
However, this is a dangerous attitude to have as the Judge will only grant the order if he or she feels that the order is fair to both parties.
If they believe the order to be unfair to either party, you will likely be asked to provide more information on how you came to the settlement to ensure both parties understand the order being proposed.
3. Ensure you have full financial disclosure
This is one of the most important parts of agreeing to a fair financial settlement.
You can’t come to a fair deal with your money, property and assets if both parties don’t have a full understanding of their spouse’s full income, assets and pension values.
If you don’t believe there’s full financial disclosure on money, capital or pensions, we’d recommend that you get some low-cost legal advice.
Consent Order FAQ’s, Answered by Experts
What can happen if I don’t obtain a consent order?
Without a consent order, either party can apply to the court for a financial order at a later date. So, even if you have reached an agreement and divided your assets formally, your spouse can at any time apply to the court for more than you agreed.
Whether the court would give them any more money is another matter, but the fact they can apply would cause unnecessary stress and legal costs with having to defend your settlement.
Do I need to go to the court to file a consent order?
No, you don’t need to physically attend the court to file a consent order; it is all done by post.
As part of our Managed Consent Order Service, we’ll file the order for you and deal with any questions or queries that the court or judge have about your agreement.
Once the drafted paperwork and court fee have been registered at court, it will be sent to a judge to approve the order.
Are there court fees associated with filing a financial application?
The current court fee for filing a consent order is £50.00. This will need to be attached to your draft agreement when sent to the court.
This fee is set by the government and will need to be paid before the order can be processed through court.
How long does it take to obtain a court order?
If the contents of your consent order are very straightforward the court normally takes 6-10 weeks to process the application.
However, this is dependent on which court you use to file the order with as courts in large areas such as London are likely to have a longer timescale.
If the agreement appears fair then the Judge should approve it, however, if there are issues the judge can write back requesting further information to help them make a decision.
If the Judge is still not satisfied they can call a hearing with both parties to attend, but this is quite rare in our 20+ years experience.
If you can come to an agreement with your spouse it will prevent longer time frames, more costs and less stress for all concerned.
What to do if the judge rejects your consent order?
The first thing to do is not panic and make any rash decisions.
If a judge rejects your consent order, it’s likely because they aren’t convinced the agreement is fair and reasonable in your circumstances.
It would then be useful to provide the judge with a clear picture as to why the agreement may appear unfair on the face of it and why you have reached that conclusion.
Here’s an example of when this may be the case
One party may have been useless with money and run up huge debts, so is happy for the remaining spouse to keep the equity in the home or any assets to pay off the debt and for them to walk away debt-free from the marriage.
You can respond to the judge via letter detailing the rationale behind the agreement and the judge may in light of the information you have provided, agree to the order.
If not, the judge may request that both parties attend a hearing, again, don’t panic. It is a court hearing but neither party is in any trouble.
It’s actually more of a fact-finding mission for the Judge to see you both face to face to ensure that one of you has not been coerced into signing the order.
It could also be to run through the order with you both to make sure you both understand what you are signing up to.
In the hearing, the Judge will either approve the order or not.
If they don’t approve the order then you may need to revisit the agreement with your spouse to see if the agreement can be changed to satisfy the Judges concerns.
How can I obtain a consent order?
When it comes to obtaining a consent order, you need to understand your options. It’s true that you can file the consent order with the courts yourself without the need of legal representation, however, you must have the court paperwork drafted by a legal expert in order for the judge to review and grant your order.
Here are the two options you have;
1) Local Solicitors – This is the most expensive and long-winded way to obtain a consent order. The law firm will require you to attend meetings to obtain the necessary information from you that they need in order to draft your financial application. The average fee charged by local solicitors for this type of work is £1000+VAT (£1200), which is excessive and unnecessary.
2) Divorce-Online – You can use our Consent Order Service for £299 fixed-fee and have everything handled for you from beginning-to-end without needing to visit our offices or the court. Everything can be completed online and you will be able to track each step via your online account form your phone or laptop.