What is a consent order in divorce and why do I need one?

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A consent order is, as the name suggests, an agreement reached by consent. This order sets out what should happen to a couples financial affairs following the breakdown of their marriage.  It deals with who should get what, when and how.

When a consent order is approved by the Court it becomes a Court Order, which is a legally binding agreement and can be enforced through the Courts if it is breached.

An agreement that is not incorporated into a Court Order is not legally binding and cannot be enforced.  Whilst it may be persuasive in certain circumstances, if one party decides to go back on the agreement reached there could be a complete breakdown in the agreement.

A consent order will specify whether either party is able to make further claims against the other now, in the future, or after death.  This could be for capital (such as a lump sum, property adjustment order or pension sharing order) or for income (which is maintenance).  Alternatively, it will specify if some, or all, of these claims are fully dismissed, and no further claims can be made – this is called a ‘clean break’.  The court are required to see whether a clean break can be achieved in all cases.

We all know that over time, circumstances often change.  This could mean that after years of separation one party could significantly improve their financial position or one party may, for example, suffer ill health that was unexpected.  In such circumstances, if you do not have a consent order setting out how the finances are to be divided and dismissing further claims being made, either party can apply to the court for a financial remedy order against the other.  This would enable one party to have a ‘further bite of the cherry’, which may seem unfair if this was not intended.  There is no time limit for such claims being made, although some claims cannot be pursued after remarriage.

For the avoidance of any doubt, securing a Decree Absolute of divorce which ends a marriage does not prevent financial claims being made.  It only ends the marriage.  The finances are entirely separate.

So, even if you are on very good terms with your former spouse, you should secure a consent order.  If you are not on good terms, securing a consent order could avoid future conflict.  Even if you feel that your assets are limited, you should consider securing a consent order.

The benefit of a consent order is that this provides clarity on the agreement reached and can avoid misunderstandings about exactly what was intended to happen, particularly if there is to be a delay in one party receiving an asset or a share of an asset.  If there is a clean break, this will provide finality for the parties.  Settling the finances properly can also avoid conflict in other areas such as arrangements for children, as both parties know where they stand and are secure in their positions.

A consent order is a technical document that should be prepared by a qualified lawyer.  It is a binding agreement and must be prepared in a particular format to be approved by the Court.  It could have ramifications if it is drafted incorrectly.

Zoë Summers is a Specialist Family Solicitor and Collaborative Lawyer in our Brighton Team.

If you would like further information about a consent order or reaching an agreement on financial issues, then please do not hesitate to contact a member of the team for confidential advice about your specific circumstances.

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