We use the term ‘consent order’ a lot when discussing the legal procedures around divorce – in particular in relation to financial settlements. The document incorporates all the financial terms a couple have agreed to implement following their divorce. The legal significance of a consent order derives from the fact that a judge has approved it, and the order operates as a brake on either side deviating from the agreed terms in the future. Consent orders work therefore to provide clarity and peace of mind as far as financial arrangements go following a divorce.
What Is A Consent Order?
The order itself is simply a court document, approved by a family judge that sets out clearly the terms agreed between the parties. It can cover finances, property and arrangements for children. Even where the divorce has been highly contentious when you agree the terms of a consent order there’s no need for a court hearing. Without a consent order (or a court judgment in the absence of agreement) both parties could potentially face financial claims from the other well into the future. If the consent order covers maintenance for a spouse or children then it can be used to secure payment in the future where an ex fails to comply with the terms.
When Can I Get A Consent Order?
After you have obtained a decree nisi you’re in a position to apply to the court for a financial order. This is usually the time to try to negotiate a consent order with your ex. Any consent order will only come unto force following the decree absolute but it makes sense to try to agree the terms of the order ahead of the pronouncement of the decree absolute.
How Do I Apply For A Consent Order?
A ‘statement of information’ must accompany the draft order on Form D81. The form is similar to Form E (where parties make full disclosure of their finances) and covers:
- Details of the marriage and children
- An explanation of how the agreement was reached
- A summary of each side’s financial worth
- A summary of where the parties and children will live
- Details of new relationships
- Confirmation that notice has been given to a mortgagee where the agreement includes a transfer of property
- Confirmation that notice has been given to any relevant pension provider
- Full details of the proposed consent order and whether the parties are seeking a clean break financial settlement
Without these details the court will be unable to make an informed decision on whether or not to grant the consent order that’s been requested.
Do I Need a Consent Order If I Have A Prenup?
Prenuptial agreements are generally recognised by courts in England and Wales so long as they meet certain criteria – both parties must have had independent advice for example. But to guarantee enforcement of the terms of a prenup parties should ensure they get the terms incorporated into a consent order. In many cases the existence of a prenup makes the process of obtaining a consent order more straightforward. After all one of the reasons for getting a prenup in the first place is to agree how financial matters should be approached in the event of a divorce.
That said, if a spouse wishes to challenge a prenup then the courts will want to comprehensively review the circumstances in which the prenup was agreed. As an aside it’s worth highlighting that you should seek specialist advice if your prenuptial agreement was drawn up in England or Wales and your divorce is being decided by courts in another country when separate issues of enforcement may arise.
Will Courts Automatically Approve The Consent Order?
Just because there is apparent agreement doesn’t mean the court will immediately rubber stamp the draft consent order. It has a duty under the Matrimonial Causes Act, 1973 to satisfy itself that the proposed terms represent a fair outcome for both sides. If for example the draft consent order proposes a clean break financial settlement and there are minor children a judge may wish to double check that the primary carer is comfortable with such an agreement.
In reality family judges don’t in most cases have to make enquiries or request detailed evidence before approving a consent order. They will usually only do so if there is a good reason. If it’s clear to the judge that each side has received independent advice and are in apparent agreement them the terms of the consent order are unlikely to be rejected by the court.
Consent Orders provide finality in the divorce process. But they must be comprehensive and drafted with precision. To discuss any aspect of this type of order please call Brookman Solicitors on 44 (0) 20 7430 8470 or contact us online.