The Importance of a Consent Order

28 June 2021

Many divorcing couples, particularly those who have decided to deal with the divorce themselves, mistakenly think that the Decree Absolute is a document that finalises the end of their financial relationship as well as marking the end of their marriage. Whilst the Decree Absolute does finalise the end of the marriage, it does not represent the end of the financial relationship between former spouses.

The document that ends the financial relationship is known as the Consent Order (or Financial Remedy Order).

The Danger of Divorce without a Consent Order

Without a Consent Order a financial claim can still be made against a former spouse in the future (if they have not remarried) even after several years have passed. This exposure to a potential future claim was emphasised back in 2015.  In the case of Wyatt v Vince the court ruled that the ex-wife of a green energy founder could proceed with a claim against her former husband, even though more than 20 years had passed since their divorce.

When you divorce, if you do not apply to the courts for a financial order, then you leave your financial position vulnerable and open to potential claims in the future.

Little or No Assets

For a divorcing couple with little or no assets, they may feel a Consent Order is unnecessary but it is certainly still highly advisable to get a simple Consent Order based on the principle of a Clean Break. Without it there is the potential for future claims. For example, if a career were to progress, an inheritance received, or even if there were a lucky lottery win after a divorce, a Consent Order with a clean break clause would prevent a former spouse from claiming part of that money.

Consider the case of Wyatt v Vince mentioned above. When Miss Wyatt and Mr Vince divorced they were both penniless, however, when Miss Wyatt made her claim, Mr Vince was a self-made millionaire.

What is a Consent Order?

A Consent Order is a formal means of recording a financial agreement. A Consent Order is approved by a Judge (often without the need for the parties / solicitors to be present) and is a legally binding document that sets out the financial arrangements that a separating couple have agreed upon.

What’s included in a Consent Order?

Every financial Consent Order is different as the content is determined by the circumstances and financial situations of the divorcing couple. However, they may include:

• Assets – bank accounts, business assets, properties, vehicles
• Debts – credit cards, loans
• Pensions – pensions can be counted as assets and therefore will be included in an agreement.
• Income – earnings, benefits, rental income, maintenance
• Maintenance – both child maintenance and spousal maintenance may be included
• Inheritance –Consent Orders can specify what might happen with future inheritances
• Liquid assets – anything that can be sold may be included within the frame of a Consent Order.

Depending on the agreement reached between the parties, the Consent Order can make provision for a variety of financial orders including lump sum payments, property adjustment orders (to include the sale or transfer of the property), pension provision such as pension sharing and pension attachment orders and maintenance.

What is required to make a Consent Order?

A Consent Order must be considered fair and to be approved by a Judge, there must be evidence that “full and frank” financial disclosure has been made by both parties – i.e. you are both aware of each other’s full financial position and have seen documentary evidence to support this. A draft order, which records the terms of the agreement, will be submitted to the court. This will be filed at the court along with a “Statement of Information” form which will detail the parties’ respective financial information. A Judge will look at the specific circumstances and only if it considers the agreement to be fair and provides proper financial provision for the parties, will the Consent Order be approved and sealed and will become legally binding.

How are the terms of a Consent Order agreed?

In an ideal world the terms are agreed amicably between the divorcing couple but when emotions are running high it’s not always an easy task. Taking professional advice from a solicitor is recommended and a good solicitor will encourage mediation and other out of court options as a first step. Mediation can be quicker, cheaper and sometimes more effective than solicitor led negotiation or court intervention.

If a divorcing couple is unable to come to an agreement over the division of finances and has exhausted all possible options, including mediation, an application for Financial Remedy (financial proceedings) can be made to the court.

When do I apply for a Consent Order?

An application can be made to the court after the decree nisi stage of divorce proceedings or anytime after the decree absolute (providing neither of party has remarried). In most cases, it is always advisable to have the Consent Order approved and sealed before applying for Decree Absolute.

Once the Consent Order is sealed can a financial claim be made?

A Consent Order will often result in a clean financial break meaning neither party can make further financial claims against the other however, there are some circumstances when a Consent Order can be challenged.

Further Advice

This article is not a comprehensive explanation of the Consent Order, merely a brief overview to highlight why it is so important to consider. If you are considering divorce or are already divorced but do not have a Consent Order, now is the time to act. We offer a free 30 minute-consultation which can be booked via our online booking system. During the 30 minutes we can discuss the issues relating to your specific circumstances and advise on your next steps. Alternatively, you can book by calling 01245 890224.

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