Lodging a financial consent order
This document provides general guidance regarding the filing at court of a financial consent order and statement of information in Form D81. Your family lawyer will be able to provide specific advice based on your circumstances.
Which documents are lodged at court?
The financial agreement reached between you and your spouse / civil partner will only become binding once it has been approved as a court order and sealed by the court. It is only by obtaining a sealed court order that the financial claims that you each have against the other by virtue of your marriage or civil partnership can be dismissed, either immediately or at a specified date in the future, depending on the terms of the agreement reached.
The following documents are lodged at court:
- a consent order signed by both parties
- a statement of information for a consent order in relation to a financial remedy (Form D81)
- a Form A (a financial application) for dismissal purposes
- a court fee
What is a consent order?
Where an agreement is reached regarding financial arrangements between spouses or civil partners, a consent order is drafted by one of the solicitors acting for the parties setting out the terms agreed between the parties. The draft order is then agreed with the other party’s solicitor, or the other party direct if they haven’t instructed a solicitor to represent them. The consent order will contain:
- recitals (agreements) dealing with any matters that the court lacks the jurisdiction to order
- undertakings where the court has no jurisdiction to make an order or to enforce certain actions, and
- the orders the court is being asked to make
What is a statement of information in Form D81?
The statement of information for a consent order in relation to a financial remedy in Form D81 is a summary in a prescribed form of both parties’ financial situation at the time of lodging the consent order at court. It should be signed by both parties personally. Both parties have a duty to provide full and frank disclosure of their financial resources, and any other relevant information in this document. There is an ongoing duty of financial disclosure, and the court should be notified of any changes in circumstances prior to the order being approved by the court. If your circumstances change after the Form D81 and the consent order have been sent to the court, you should discuss this with your solicitor. If information is withheld from the court, there may be a risk, depending on the circumstances, of the consent order being ‘set aside’ after it has been made.
What is a Form A for dismissal purposes?
As we will be asking the court in the consent order to dismiss claims for financial provision, it is necessary for those claims to be brought formally before the court. This is done by completing a Form A (a financial application) for dismissal purposes, which I can do on your behalf.
Why is financial disclosure necessary?
Both you and your spouse or civil partner need to have details of all of the financial information before you can agree your financial arrangements as the law says that the available resources must be split fairly. It is not possible for you, your lawyers or a court, to know what will be a fair solution unless everybody knows the full financial picture.
Form D81 provides the court with an up to date picture of your finances and should be full and accurate. If a court order or agreement is later found to have been based on inaccurate information it is possible to ask the court to reopen the case and make a new order. Giving deliberately untruthful information may also be a criminal offence or contempt of court.
What happens when the documents are received by the court?
Once the consent order and Forms D81 have been finalised and signed, they are lodged at court for a judge to consider. The judge’s role when considering a draft consent order is not simply to act as a ‘rubber stamp’. The judge has a duty to scrutinise the agreement before them, but may make an order in the terms agreed on the basis of the information set out in the parties’ Forms D81, unless they have reason to believe that there are other circumstances into which they should enquire. How long this will take will depend on how busy the court is, but it will usually be several weeks before the consent order is considered by the court. Your solicitor will be able to confirm the current timescale in your local court for the approval of a financial consent order.
Who attends court?
Unless the court directs otherwise, it is not necessary for the parties to attend the hearing of an application for a consent order and the documents are usually sent to the court to consider without attendance by the parties or their solicitors.
How does the court decide what is right?
The court follows the legal principles from legislation and case law in making its decision, although each judge has a discretion to do what they perceive to be appropriate in the circumstances of each particular case. This means the precise outcome of financial court proceedings can be difficult to predict but your solicitor will be able to advise you on the general range of financial orders that are likely to be made by the court.
The statutory principles are set out in section 25 of the Matrimonial Causes Act 1973 and Schedule 5 to the Civil Partnership Act 2004. The court’s first consideration is the welfare of any children involved. Alongside that, when determining an appropriate division of resources, the court considers:
- each person’s income, earning capacity, property and other financial resources, available now or in the foreseeable future
- each person’s financial needs, obligations and responsibilities relevant now or in the foreseeable future
- the standard of living enjoyed by the family before the breakdown of the marriage
- each person’s age and the length of the marriage
- any physical or mental disability
- contributions made or likely in the foreseeable future to be made to the welfare of the family, including any non-economic contribution such as caring for any children
- the conduct of each of the parties, if that conduct is such that it would in the opinion of the court be inequitable to disregard it (although it is rare for conduct to be taken into account and the reason for the marriage or civil partnership breakdown is very unlikely to be a conduct issue for the purposes of a financial application), and
- the value to each of the parties to the marriage of any benefit which that party will lose the chance of acquiring
Other principles have become part of the law through the decisions of senior judges in important cases.
When dividing assets, the court will measure the end result against a benchmark 50/50 asset split to assess whether anything other than that is justified. Circumstances in which there may not be a 50/50 asset split include where one person’s (or the children’s) needs require a higher proportion of the capital assets, eg for housing, or sometimes where one person came into the marriage with significantly greater assets than the other.
An agreement made before or during the marriage (eg, a pre-nuptial or post-nuptial agreement) can also have a significant effect on what the court decides.
What orders can the court make?
The court may make orders in relation to all property in which either of the parties have an interest (which may also, in certain circumstances, include assets in companies or trusts), for example it can:
- order a sale of a property, a transfer to one person (or to a child) or put a property into a trust
- order that a lump sum of money be paid by one party to the other, or for the benefit of a child
- order one party to pay spousal maintenance (periodical payments) to the other either for the rest of their joint lives/until the recipient remarries or enters into a subsequent civil partnership, or for a fixed period (for a non-extendable or extendable term), eg until retirement
- make an order to provide for educational expenses etc, but not usually for child maintenance (which will generally be dealt with by the Child Maintenance Service in the event that the parties do not agree what child maintenance should be paid), except at higher income levels, and
- order that a pension be shared, or attached—sharing is where funds are transferred or split between the parties; attachment is akin to maintenance coming direct from a pension, but can also be a lump sum
In certain circumstances some orders may be capable of variation by the court at a later date, for example spousal maintenance orders where there has been a significant change in the income of one of the parties, but orders in relation to capital will generally not be capable of being varied. Your solicitor will be able to advise you on which of the orders the court is being asked to make in your case could potentially be varied at a later date if there is a change in circumstances.
An ‘undertaking’ in a consent order is a promise to the court and will be included where the court does not have jurisdiction to make an order in the terms of the undertaking. It is important to understand the consequences of giving an undertaking, and that a breach of an undertaking will have serious consequences.
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