Many couples who have undergone an amicable separation and divorce successfully negotiate a satisfactory financial settlement. Those without matrimonial assets might assume that the final divorce order is the end of their financial dealings. However, regardless of the situation, a consent order is crucial because it finalises financial arrangements and ensures that neither party can make future claims against the other. This article looks at the consent orders in more depth.
What is a consent order?
A consent order is a document that sets out the financial agreement reached by the parties to a divorce. Once approved by a judge, it becomes legally binding and can be enforced should either party later breach its terms.
A consent order sets out how the finances will be split between both parties and can include:
- Property
- Pensions
- Savings
- Debts
- Investments
It can also set out terms for child maintenance payments or spousal maintenance. Payments relating to the children are only legally binding for a period of 12 months, after which the Child Maintenance Service (CMS) has jurisdiction should either party apply for an assessment.
If you don’t obtain a consent order because everything has been amicable or you simply don’t have any assets to divide, it leaves the door open to either party to make a financial claim against the other in the future.
What is a clean break consent order?
A clean break consent order severs the financial ties between a couple on divorce but will only be made where appropriate. A clean break in relation to income and capital may be made when the parties do not have any assets or liabilities they intend to divide. For example, where each party has their own bank accounts and there is no property to be divided.
A clean break can also be deferred until a future date, so spousal maintenance may be made for a fixed term, after which a clean break takes effect.
Do I still need a consent order if we have no financial assets?
You should consider getting a clean break consent order even if you do not have any assets. This will make sure any future claims against you will be dismissed. Without a consent order, there is always a possibility of a future claim being made by your ex-spouse. A clean break order made by consent allows a couple to end their financial commitment to each other and makes it clear that neither can make a financial claim, including contesting a will.
Can you get divorced without a consent order?
You can get divorced without a consent order because they are separate legal proceedings. However, this is not advisable. An individual can apply for a consent order once the conditional order of divorce has been made, although it is not legally binding until the order has been approved and the final divorce order has been obtained.
Can the consent order be rejected?
A judge can reject a consent order if they do not believe it is fair. Unlike other court orders, a legally binding consent order cannot be varied or set aside unless there are exceptional circumstances. Therefore, a judge may decide that one party is being treated unfairly or the order is unjust. Here, the consent order will be rejected and returned to the parties for amendment before being made binding.
In what circumstances can a consent order be changed?
If both parties agree to the changes, then the consent order can be amended with little issue. To do this, you will need to re-draft and re-submit the consent order for the judge to approve. When the new consent order is approved, the previous one will be set aside at the same time.
If changes are not agreed, it is not possible to make any changes once the consent order has been signed, as it is legally binding. That said, there are some limited exceptional circumstances in which a consent order can be challenged. These are:
- The other party did not fully disclose their true financial position, such as hiding significant assets
- There was fraud or misrepresentation. For example, the asset valuation was inaccurate
- The order was signed under duress or there was a lack of mental capacity because of mental illness
- An unexpected event occurs soon after the consent order is signed that completely undermines the original terms, e.g. receipt of a large inheritance or a lottery win
Do we have to complete full financial disclosure if we are keeping what we currently own?
Although you do not need to complete full financial disclosure to get a consent order, it is recommended that you do so. In order to get an agreement, as a minimum, the court needs the statement in support, so you will need to disclosure the full amount of equity in all your properties, your total assets (such as savings, ISAs, cars, money owed to you, etc), total liabilities excluding any mortgages and any pensions including SIPPS. You will not be able to get a consent order without this information being disclosed and agreed between you.
That said, in theory, you do not have to provide a breakdown of the figures surrounding what makes up the total asset calculation.
Can I get a consent order without getting a divorce?
You must be getting divorced to have a consent order. As stated above, you will need to have had your conditional divorce order granted in order to submit a consent order to the court. If you are not getting divorced, you may want to consider a separation agreement instead.
How long does a consent order take to be approved?
Because of a backlog in the court system, they are currently taking around 6 months to approve a consent order. Some courts may be operating quicker than this and others may take longer; it all depends on how busy they are. Unfortunately, you cannot do anything to speed up the process, but there is case law to show that a draft order that has been agreed would be binding on both parties, even if it is not yet sealed or the final divorce order announced.
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