Guide to Financial Consent Orders In Divorce
When couples are thinking about getting divorced, they often fail to realise that splitting finances are dealt with separately from the divorce process.
If you fail to have your financial agreement drafted into a consent order the court has no power to enforce any part of the agreement if one party fails to comply in the future.
In the eyes of the law, a divorce is not ‘complete’ until a financial order has been approved by the court.
On this page, we’ll walk you through everything you need to know about obtaining a financial order to sever all of your financial ties with your ex-partner after divorce.
What Is a Financial Consent Order?
A consent order is a legal document that confirms your financial agreement to the court in respect of how any assets such as money, property, pensions, and investments are to be divided upon divorce.
Having a court approve a financial order essentially ‘completes’ a divorce by severing all financial ties and preventing any future claims by either party.
Applying for a consent order
A divorcing couple can apply to the court to approve a financial order at the conditional order (‘decree nisi’) stage of divorce proceedings. An application cannot be made prior to this point.
Currently, within the divorce procedure, there is a 6-week ‘cooling off’ period, which is designed to allow couples to negotiate and settle any outstanding money, children, and asset divisions or settlements.
In most cases, the financial agreement becomes legally binding on both parties once the judge grants the final order (‘decree absolute’), giving both parties a ‘clean break’.
Whilst it’s possible to obtain a consent order after the decree absolute has been granted, it may affect your entitlement to certain assets, such as pensions; you may also be liable for tax on any assets you receive.
Therefore, the best time to apply for a financial consent order in most cases is at the point in which the court grant you a conditional order as your agreement will become legally binding upon completion of your divorce.
Can you divorce without a financial consent order?
Yes, you can, however, a divorce is never complete without a financial order.
If both parties are in an agreement about your financial split then the right thing to do is to have a financial order drawn up by a solicitor.
The divorce law does not force couples to obtain a financial order, however, your formal agreement won’t be legally binding, without it.
If one spouse goes back on their word for any reason in the future, a court would be unable to enforce any element of your agreement, whether that is for a property sale, lump sum payment, division of pensions and so on.
What should be included within a consent order?
The aim of a consent order is to detail how your joint assets are to be divided and will cover money, property, investments, pensions and savings. It may also include details of any spousal maintenance or child maintenance payments.
Financial orders are not only for the division of assets, they can also help give guidance to on-going financial obligations, such as maintenance and/or rent/mortgage payments.
Depending on the agreement you reach, one spouse may continue to pay the mortgage on the family home for a period of time. Without a financial order in place, the court has no powers to enforce the agreement if the party doesn’t pay.
Here is a list of the most common clauses and assets that couples include within a consent order:
- Clean break – preventing future claims
- The sale/transfer of any property
- Savings and/or Debt provisions
- The division of any personal belongings
- Child and/or Spousal maintenance
- Lump-sum payments
- Business assets or investments
How Divorce-Online Can Help You
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Tips on obtaining a financial order after a divorce
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, retirement income and ongoing 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 the matrimonial pot from one spouse. Pension assets should be looked at carefully, do not always take cash now and sacrifice income in your old age.
2. 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 disclosure on money, capital, or pensions, we’d recommend that you get some low-cost legal advice.
3. 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.
4. Don’t assume you’ll stay amicable after the divorce
The most common mistake we see couples make is assuming that amicable relations will continue in the years to come so they don’t believe a financial order is necessary.
“Me and my ex are amicable, so I don’t see that being a problem”… This phrase is often said by those seeking a divorce, but having this attitude can sometimes come back to bite you.
Oftentimes, new partners can be a driving force for either a) claiming more money or b) having their partner reduce children/spousal maintenance payments.
In either case, it stresses the need for you to obtain a financial order to deal with your money and assets at the same time as the divorce.
Can I write my own consent order?
A financial consent order is a legal document that should be prepared by a qualified solicitor with the consensus of both parties.
The draft agreement sets out what each party has agreed to in relation to their matrimonial assets and finances and ensures all legal clauses are drafted correctly.
Using a template downloaded from the internet stands little chance of satisfying a court. It would likely result in a refusal and a subsequent loss of court fees.
Five reasons you need a financial order
As we have discussed, it is generally a good idea to get a consent order, no matter what the financial circumstances at the time of divorce.
However, there are some specific reasons for getting a financial consent order, including:
- Buying a full share of the marital home – if they have a joint mortgage, one divorcing party may offer to purchase their former spouse’s share of equity and take on the full mortgage. Putting a consent order in place ensures that they do not renege on this agreement.
- Selling the family home – divorcing couples often decide to put their shared marital property on the market and divide any profit from the sale. This may involve a lump sum payment for either or both parties, related to their relevant equity share. A consent order prevents anyone from pulling out of the sale.
- Pensions – a consent order helps to cement any pension sharing arrangements. This can be particularly useful in a deferred pension sharing agreement, where the ex-partner does not receive a portion of the pension payment until a later date.
- Maintenance – a consent order ensures that any child or spousal maintenance agreement is upheld for the duration of the agreed period.
- Debts – sometimes debts will be apportioned as part of the financial settlement. A consent order will help make sure these are paid off by the relevant party.
Frequently Asked Questions
What happens after a consent order is sealed?
Once the consent order is sealed by a Judge it will be sent by post to each party. Each party, or their family lawyer, is then responsible for carrying out the terms of the order.
This could involve selling the family home or it could involve more complex divisions, such as splitting money from pensions. The financial order is legally binding, so parties are responsible for ensuring the agreement is complied with.
How long does a consent order take?
In normal circumstances, it takes approximately 6 to 10 weeks for the court to approve a financial court order. However, timescales for financial applications can depend on the court you file with and whether you do it online or via post.
How long is a consent order valid for?
A consent order is indefinitely legally binding. However, some parts may expire as events take place, such as a family home being sold or a pension maturing.
Can a Judge change a consent order?
A judge has the right to amend any financial order if they deem it to be unfair in any way. Consent orders are usually considered a ‘clean break’ between a divorcing couple, meaning that neither party will be able to make a future financial claim against the other.
Once your financial order has been granted by a Judge it can only be overturned or changed if there has been suspected fraud, like hiding assets or what is known as a “Barder” event.
The Barder principle comes from the 1987 case of Barder v Barder and allows a court to exercise its discretion to grant leave to appeal out of time if certain conditions are satisfied.
What happens if my ex-partner doesn’t comply?
The court will not be directly involved in carrying out the order unless there is a failure to comply with it. At this point, an application to enforce the order would have to be made to the court.
What happens if Judge does not agree with our consent order?
When obtaining a consent order, there is usually no court hearing as the judge will simply approve your order to make it legally binding.
However, if the judge does not think the consent order is fair, they can ask questions regarding your financial agreement, either in writing or at a hearing, to clarify certain issues.
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