If you are going through a divorce, you need to make certain arrangements for the future. This includes dealing with the separation of your finances. And that’s why you need a family lawyer with plenty of consent order experience.
If you and your spouse, or ex-spouse or civil partner can agree on how you will split your assets and liabilities, the court will normally approve this and grant a consent order setting out your agreed terms.
Worried about finalising a financial settlement between you and your ex? Our specialist Divorce and Family Law team offer a FREE first 1/2 hour appointment – face to face, by phone or Zoom video. Call our Consent Order Lawyers now and put your mind at rest.
NB throughout this webpage we refer to divorce. But it comes to consent orders, exactly the same issues apply to the dissolution of civil partnership.
What is a consent order?
A consent order is an order made by the court on terms that you have agreed with your spouse. It sets out how you have agreed to split your income and capital – which includes all of your assets and debts, which include your home, pensions and any other property or items of value. The order is approved by a judge, making it legally binding.
It’s important that your consent order is correctly drafted – or the court will not approve it. And the best way of doing that is by ensuring that draft order is prepared by an experienced consent order lawyer. Here at Bonallack & Bishop, 4 of our highly experienced family lawyers regularly prepare consent orders for clients.
You will need to go through several steps to secure a consent order. In particular, if you want a consent order to finalise your financial affairs, you and your spouse must disclose all of your assets and liabilities to each other as part of the process.
Unless the court is satisfied that you have done this and you have reached a fair agreement, it will not approve or grant your consent order.
Can I draft my own order?
In theory, yes – like most legal documents, you can draft your own if you wish. But is particularly important that your consent order is correctly drafted. If it’s not, then the court will simply not approve it.
And the best way of doing that is by ensuring that draft order is prepared by an experienced consent order lawyer. Here at Bonallack & Bishop, 4 of our highly experienced divorce and family lawyers regularly prepare consent orders for clients. And the divorce and family law team is headed by a serving Deputy District Judge. So if you instruct us, you can be sure you’re in safe hands.
Can I get divorced without a financial consent order?
Absolutely. Many people believe that financial issues are automatically sorted out by the court as part of the divorce process – but that’s simply not true.
There is no legal requirement for a consent order or any form of financial agreement. And some people do get divorced without consent orders (most commonly where neither party has any real assets).
But if there are any family assets, and especially if the marriage was a long one, doing without a consent order to finalise any financial arrangements is not recommended.
Why do I need a consent order?
Many people unfortunately believe that divorce, or the dissolution of civil partnership means that they no longer have any financial obligations to their X in future. But that is simply untrue.
Without a consent order, you are left wide open for your ex-partner to make a future financial claim arising out of the relationship against you in the future – regardless of whether they said they would not do this. Former spouses have made successful claims, even decades after a divorce – see our real case study below.
If you can agree on the terms between yourselves, you can ask the court to make a consent order turning what is a non-enforceable agreement into a legally binding court order. In short, a consent order will prevent any future claims by either party in the future.
A consent order can involve a split of your assets, even with ongoing child maintenance example – alternatively it can involve what is known as “a clean break” where there is no future possibility of financial payments by one party to the other in in the future.
We have no financial assets – do we still need a consent order?
It’s not essential, but yes it often a very good idea to consider getting a clean break consent order even if there are no substantial family assets. That’s because without a consent order, there is always a possibility of a future claim being made – and as you will see from 1 of the case studies below, that risk is very real.
Genuine case study
Many years ago 1 of the family law team here at Bonallack & Bishop acted for X – a charming elderly man in his 80s, who has since passed. Some years previously he had, in his 60s, X married a younger woman, Y. The marriage lasted just a few years and ended in divorce over 15 years previously.
Despite getting divorced, X and Y did not formally deal with financial issues, and in particular did not get a Consent Order. They did however come to a private arrangement. Under that agreement, X kept the house in Salisbury he already owned and where the couple had lived together. Y returned to the North to live in a house she already owned. X relied on his work pension. Y continued to work.
X was very surprised many years later when Y applied for ancillary relief – i.e. for financial order arising out of their marriage. In particular, Y demanded the sale of X’s house with the proceeds to be split between them. She argued that the house was owned, as it was, in joint names. Her own house was owned in her sole name and she was not proposing to let him have a share of that. The marriage had been short and the value of the houses not hugely different.
Despite the fact that Y had little or no chance whatsoever of getting an order for sale of the house still in joint names, which would make X homeless, the case dragged on for some time. Y never turned up to a single hearing. She lost hearings at every stage and appealed every decision. Y had costs awarded against at every stage and even appealed some of those costs orders – she lost every single one of those appeals. In the end, as was inevitable, her claim was simply rejected outright. And in the end X to not have to pay any of our legal fees, which were paid eventually by Y. But the whole process had sadly caused X considerable distress.
None of that would have been necessary if they had a simple consent order made reflecting what they agreed at the time when the divorce went through.
Consent orders – the importance of certainty
One very important aspect of a consent order is the fact that it stops either party to a marriage or civil partnership from making a financial claim against their ex-partner in future. And this can also be important if one party’s financial situation improves post divorce.
Say A wins the pools, years after a divorce which went through without a final consent order. Spouse B is perfectly legally entitled to make a claim for financial order arising out of the marriage years after divorce in these circumstances. And it happens. That’s another reason why the consent order is so important.
And this is not just a theoretical risk. There have been plenty of real-life examples where one spouse does come back many years later. In particular, back in 2016 saw a particularly well-publicised example.
Kathleen Wyatt and Dale Vince separated 25 years previously and were finally divorced approximately 20 years earlier.
In the meantime, former new age traveller Mr Vince had become the founder of green energy business Ecotricity which made him a very wealthy man. His ex-wife then claimed £1.9 million – though eventually ended up with a final financial settlement under which he agreed to pay his ex-wife £300,000.
Another well-known example involved a Euro lottery winner called Nigel Page. 10 years after his divorce, he won a cool £54 million. The couple have not obtained a financial consent order. His former wife, Wendy, applied to the court for £8 million, and eventually they reached an out-of-court settlement for £2 million.
How do I get a consent order?
- Exchanging financial information
The first step in securing a consent order is to exchange financial information with your spouse in what is referred to as “full and frank disclosure”. This means you must disclose all of your assets and liabilities. Trying to hide assets is not sensible. The court take a very dim view of that kind of behaviour, and if evidence obviously comes to light that you were trying to hide significant assets, that can be a ground for reopening the entire financial settlement, despite that consent order.
What’s more, anyone failing to provide full and frank disclosure and trying to hide financial assets could be held in contempt of court – and that could end up with a fine or even imprisonment.
You each provide financial information to the other by filling in a rather long comprehensive and intimidating form known as “Form E”. Amongst the details you will need to provide are the following:
· Details of your children and their educational needs
· Where you live and whether you own your home
· A list of properties you own or partly own
· A list of your savings, bank accounts, investments and valuable items worth over £500
· Money owed on a mortgage
· Credit card debts, hire purchase agreements, overdrafts and bank loans
· Business interests
· Pensions and future pension entitlements
· All sources of income and how much you receive, including income from investments
· The income you need
· The income needed to support your children
· The capital you need
· Any other relevant information, such as anticipated changes in your circumstances or any disability
- Agreeing on the terms of a consent order
You will generally negotiate with your spouse through your family lawyer to agree on the terms of your consent order.
If you cannot agree, you can go to mediation or use the collaborative law process. These are alternative methods of dispute resolution to litigation. They are quicker and most cost-effective than court.
Click here to read more about how family mediation could help you
Once you have agreed a financial settlement, your lawyer will draft your consent order setting out the terms.
This will be sent to the court together with your financial information. If the court believes the agreement is fair, it will seal it into a legally binding consent order.
Click here to read more about divorce and finances following marriage breakup
Do I have to go to court to get a consent order?
You will not usually need to attend court in person if you and your spouse agree on your consent order’s terms. The court will go through your financial information and the draft order and decide whether to approve the order.
What goes in a financial consent order?
A consent order arising out of divorce is there to finalise a financial settlement – so you can get on with your life. Amongst the kind of issues that are usually dealt with in this document are the following:
· What will happen to any property, including the former matrimonial home. Additional clauses could cover issues around who will live there, whether one party will buy the other out, who will pay the mortgage payments, and how proceeds of sale will be shared
· How you will split savings, investments and other assets
· What will happen to pensions – there are a number of different orders can be dealt with pensions
· Whether either of you will pay maintenance to the other – and if so for how long
· How much child maintenance you or your spouse will pay. You should note that 1 of the few restrictions on what you can put in a consent order is that either parent cannot avoid an ongoing liability to support their children
· How you will deal with debts and other liabilities
Is a consent order legally binding?
In short, yes. Breach of a consent order is contempt of court and the court can take steps to enforce the terms of the order and penalise breaches. This includes:
· Making an attachment of earnings order if maintenance is unpaid
· Authorising a bailiff to seize goods
· Making a charging order against property
· Authorising the transfer of property
· Imposing a fine
· In the most serious cases, committing someone to prison
Can the terms of a consent order be changed in the future?
In very exceptional circumstances, a court might decide to change the terms of a consent order or set it aside. These include where:
· One of you did not make full financial disclosure, for example, one of you hid assets
· There was fraud or misrepresentation, for example, by undervaluing an asset
· One of you pressured the other to agree to the terms of the consent order
· Circumstances have changed substantially since the order was made, for example, by a lottery win
It is also open to you and your former spouse to agree to change the terms of the consent order and ask the court to approve the changes. If you think that any of these circumstances apply to you, make sure you speak to a specialist family lawyer as soon as possible.
How long does it take to get a consent order?
The time taken to get a consent order will depend on how quickly you and your spouse can exchange information and agree on the terms. Once you have sent the draft order to the court, approval can take two to three months. If the court has a backlog, it could take longer.
Do I need a lawyer to prepare our consent order?
Like many legal documents, there is no legal requirement to have it drawn up by qualified lawyer. However, while you can in theory produce your own DIY consent order, it’s rarely a good idea.
Getting the right content and using the right wording in your consent order is essential – to protect both parties in the future, and not least to ensure that the judge will actually approve the consent order. A badly drafted or incomplete consent order is likely to be rejected by the court.
Does the court always approve consent orders?
Getting a consent order approved by the court is not a rubberstamping exercise. It does not happen automatically, and some orders are rejected by the judge, despite the fact that both parties have agreed to the contents.
The judge will look at both the financial information provided by the parties and the order itself. Not only will the judge check that the order is properly drafted and reflects what appear to be the intention of the parties but will also consider whether or not the consent order is essentially fair. And if there are any problems, the court can either request further information in this writing or even, on occasions, invite both parties to attend a hearing with the judge to clarify issues.
What happens if my ex-spousal civil partner breaches the consent order?
The consent order is a legally binding order made by the court and if either party fails or refuses to comply with the terms of that court approved agreement, the matter can be returned to court for enforcement.
We have an existing prenuptial agreement. Will a consent order simply confirm that?
Not necessarily. In the UK, pre-nups are not yet legally binding. So if you do want a final financial settlement, and you have both agreed to base it on the existing prenup, you’re still going to need to go through the normal process of getting a consent order. That means full and frank disclosure and an application to court for approval of your financial agreement.
As with any other consent order, the judge will look at your individual application – it’s not a rubberstamping exercise. Increasingly, courts do pay considerable attention, in most circumstances to pre-nups.
Click here read more about UK post nuptial agreements and prenuptial agreements