Sealing the deal – The financial Consent Order

Many couples do not realise that financial arrangements need to be dealt with separately from the divorce process to obtain a legally binding outcome. A financial Consent Order is the key way that you can clarify how your finances will look post-divorce/dissolution.

Negotiating a financial agreement which is later incorporated into a Consent Order is almost always preferable to arguing things out in Court and asking a Judge to decide.

What is a Consent Order?

A financial Consent Order is an order made by a Judge at the request of both parties to a marriage/civil partnership, to confirm a financial agreement they have reached.

Do I automatically get a Consent Order with my divorce/dissolution?

No, you need to make a separate application for the financial order, whether this is by way of a Consent Order following the reaching of an agreement, or through a Court hearing with a Judge deciding on the outcome if agreement cannot be reached.

It is possible to get a divorce without a financial order ever being made, although this is not recommended by us.

We have no financial assets. Do we need a Consent Order?

Even if you have the most amicable relationship, have no assets or property, or were married for a very short period time; we would recommend that as a minimum you should enter into a clean break Consent Order.

A clean break Consent Order will provide you with a lifetime protection and peace of mind for a small cost.

What is a clean break Consent Order?

A clean break Consent Order is the simplest type of Consent Order that will cut any financial ties between you and your ex-spouse now and in the future.

It is ideal for cases where currently there are no assets, property or debts, and the couple want certainty for the future by knowing all financial matters have been dealt with.

Can we have a Consent Order if we are not getting divorced or having our civil partnership dissolved? 

No, you can only have a Consent Order in the context of a divorce or dissolution of a civil partnership. If there are no divorce/dissolution proceedings, you should think about a Separation Agreement.

​We get on fine; do we really need a Consent Order?

The main reason for obtaining a consent order, is so that you are both certain that the other is completely committed to the financial agreement and neither can change their mind later. The secondary reason is that some financial arrangements (particularly relating to pensions) can only be put into effect through a Court Order.

If you divorce without a Consent Order you need to be aware that your ex-spouse/partner may be entitled to make a financial claim at any point in the future – even after many years have passed.

Some couples decide to divorce without a Consent Order simply because they may have nothing to share, or because they are happy to agree a financial division informally. The problem with this approach is that you may be creating a “ticking timebomb”. A new partner may come along, or friends and family may persuade one person that the informal agreement was not fair. If this happens and you do not have a Consent Order after divorce, a financial claim can be made to the Court.

The easiest way to remove any uncertainty, is to enter into a Consent Order.

I am going to stay in the family home and buy my spouse out and take over the mortgage. Do I still need a Consent Order?

With the current cost of living crisis this situation is becoming more common and is one where having a Consent Order is very important. Even after ownership of the house has been transferred, a couple’s financial claims against each other do not come to an end. Having a Consent Order which records the agreement to transfer the house to one party in exchange for a payment to the other would bring such claims to an end.

What can be included in a Consent Order?

Essentially all the financial aspects of the agreement you have reached. A Consent Order can include the following:

• your home – whether it will be sold or transferred to one of you, and how the proceeds will be divided;
• how other assets such as savings, investments or business interests will be dealt with;
• what will happen to personal possessions such as furniture;
• how any pension schemes will be shared;
• child maintenance for any children;
• whether one of you will pay maintenance to the other, and for how long;
• any other expenses – for example, if one of you will continue to pay for life insurance or private healthcare;
• how any outstanding debts will be dealt with;
• an agreement that neither of you can make a claim as a financial dependent when the other dies.

Can a Consent Order include our arrangements for the children?

No, the Consent Order deals only with financial issues.

When should I apply for a Consent Order?

You can only apply to the Court to approve a Consent Order once you have started the divorce/dissolution and reached the Conditional Order stage.

Do we have to provide our financial details if we agree on a settlement?

To obtain a Consent Order (even a clean break order) you must provide full financial disclosure. A document known as a Statement of Information must be completed and submitted to the Court along with the proposed Consent Order. This document shows your current financial positions and your financial position when your financial agreements have been implemented. The Court uses this information to support their decision on whether the proposed financial Consent Order is fair, even if this is a clean break order.

The minimum information that needs to be provided is:

• Equity in properties
• Total savings and investments
• Total liabilities (not mortgage debt)
• Total pension valuations
• Monthly income

A Court will not approve a Consent Order unless this information is disclosed.

Can I obtain a Consent Order after the divorce/dissolution has been finalised?

Yes, you can get a financial Consent Order even after a divorce has been made final many years earlier. Although, the best practice is to finalise your financial arrangements before the final order is made in the divorce/dissolution.

Remember – either party can make a financial claim against the other at any point after divorce/dissolution unless you have a sealed Consent Order is in existence.

Will a Judge automatically approve a Consent Order?

No, a Judge does not just “rubber stamp” or approve Consent Orders. The Judge can question the fairness of your agreement and ask questions to make sure that a person in a perceived weaker position is fully aware of the implications of the Order.

The Judge is within his/her rights to withhold approval, but they also recognise that people are free to do what they choose with their money and lives. Judges will usually accept sensible explanations to any questions they raise.

What happens if we cannot agree a financial split?

If you are unable to agree a financial split, you can apply to the Court to make a financial order on your behalf. This will involve one party commencing financial proceedings.

If court proceedings are commenced there are normally three hearings required to make a financial order which could take a minimum of 12 months. It will also result in the parties incurring significant legal fees unless an agreement can be reached during the proceedings. It is far quicker, cheaper, and less stressful if the parties can reach a financial agreement outside of court.

Can a Consent Order be changed?

Generally, not. The point about a Consent Order is that it is final.

It is therefore important you should think about it carefully before you commit to it. A Consent Order must be freely agreed between the two of you. You are each free to negotiate a change to the agreement at any stage before signing.

Once the Consent Order has been agreed by the Judge and sealed by the Court, it is final.

There have been some exceptions to that in truly unusual situations, for example where one of the parties unexpectedly died very shortly after the order had been agreed. But if you enter a Consent Order you should expect it to be conclusive.

You may be able to challenge a Consent Order if:

• your spouse didn’t disclose their true financial position, for example hiding significant assets or a new highly paid job offer;
• there was some kind of fraud or misrepresentation, for example if the valuation of an asset is very inaccurate;
• you signed the order under duress or lacked mental capacity (for example, because of a mental illness);
• an unexpected event occurs shortly after the consent order is sealed and completely undermines its terms, for example if your ex has a sudden, large windfall.

What happens if one party does not comply with the terms of a sealed Consent Order?

If the Consent Order has been breached by one of the parties, the issue may be resolved between the parties themselves. If this is not possible then an application will have to be made to the Court for the Court’s involvement.

If a party fails to comply with the Consent Order, then they will be in contempt of Court, and this is a serious offence.

Unless it can be shown there is a good reason for the Consent Order being breached, the Court will usually enforce the terms of the Order.

Checklist of things to do after your divorce.