What is a financial consent order in a divorce?

Divorce is the legal process of ending a marriage or civil partnership through a court procedure.

While in most cases it is not necessary for a couple to attend court, they do have to make some very important decisions that could have significant consequences for their financial and emotional wellbeing for many years to come.

Coming at what is already likely to be a stressful time, the legal process surrounding divorce may seem daunting and we recommend that you obtain expert legal advice to guide you through the procedures.

Wilson Browne’s family law team is recognised by the Legal 500, a who’s who of the legal profession, and we have a wealth of experience when it comes to guiding people through their divorce and helping them make the right decisions for their future.

Recent legislation has resulted in significant changes to the divorce process and the terminology that surrounds it. We will look below at the procedures you need to be aware of and will be delighted to meet with you personally to discuss your case in detail.

What is the purpose of a consent order?

It is now commonplace for divorcing couples to reach an informal agreement over how they will share out their assets (including money, property, possessions, investments and pensions) and liabilities (including debts such as loans and mortgages).

Depending on the circumstances, this could also outline details of spousal and child maintenance.

However, to make your agreement legally binding, a draft consent order must be submitted to the Court to approve and seal it. Without a sealed consent order, teither party is obliged to stick to its terms in the future.

The court will only approve your consent order if they think it is fair. If they do not think it is fair, they can ask you to change it.

Without the agreement being legally recognised in a consent order, however, neither party is obliged to stick to its terms in the future.

The consent order sets down all the terms clearly and unambiguously, acts as proof of the agreement you have reached and, crucially, makes it legally enforceable in the future. This can provide you with vital protection should your ex-spouse, for example, make future demands for more money or refuse to pay maintenance that had previously been agreed.

A consent order provides you with the peace of mind that all the financial issues resulting from your divorce have been settled, enabling you to make a fresh start.

How do I apply for a consent order?

A consent order can only be submitted to court once divorce proceedings have reached the conditional order stage or the decree nisi stage. It will take a minimum of 20 weeks to reach this point and it is recommended that you work with your partner to draw up a draft consent order before even applying for a divorce. In this way you will be ready to submit the application to the court for approval as soon as you reach the conditional order stage, and can obtain the consent order before your divorce is finalised.

Can I obtain a consent order after my divorce?

Even if you and your partner have virtually no assets it is still highly inadvisable to divorce without a consent order. People’s circumstances often change over the years and it is possible that you find yourself in a much better financial position in the future. Without a consent order your ex-spouse could claim that they are entitled to some of your new prosperity.

A consent order provides a sense of closure (they are sometimes referred to as ‘clean break consent orders’) to a marriage and enables both parties to make a fresh start and plan for the future.

Do I need a consent order after my divorce?

Although it is not compulsory to obtain a consent order at any point, it is strongly recommended that you apply for one for the reasons we have seen. You cannot apply for the order until after the conditional order stage of your divorce but it will save time if you and your partner have already agreed what it will contain.

Although you can get a consent order after your divorce following the granting of the Final Order, previously or decree absolute it is inadvisable to wait until this stage as this can lead to problems. You will no longer be legally married at this time and so, for example, you may not be able to have trust or pension funds transferred to you, which could have major financial implications.

Do both parties need a solicitor for a consent order?

While you and your partner do not need to each have a solicitor to apply for a consent order, it is strongly recommended that you do.

There are a number of advantages to hiring a solicitor:

• A solicitor will be able to use their experience and expertise to outline all your options to you and help you identify a compromise that is acceptable to you and your partner. It is also important to remember that the judge will reject the application for the consent order if they do not think it is fair to both parties – something that could cause added delay, expense and stress at what is already a very difficult time. Having a consent order drafted with the help of solicitors makes it much less likely that there will be any such complications.
• There is a formal process (including the drafting of your application) involved in gaining a consent order. A solicitor will be able to use their expertise to ensure that the proper procedure is followed and so avoid unnecessary delays.
• Once a consent order has been drafted it is possible that either your spouse or the court will ask for changes to be made to it. A solicitor will be able to advise you on the best way to respond to such requests.
• Should circumstances change and you and your ex-spouse wish the terms of the consent order to be changed in the future, your solicitor will be able to help arrange this.
• It will be important to obtain legal advice should you believe your ex-partner has breached the consent order – or if they accuse you of doing so. Such a dispute may result in a court hearing where your solicitor will be able to present your case.

What is mediation and how can it help me?

If you and your partner are having difficulties in reaching agreement over the contents of the consent order you might want to consider using mediation to resolve your differences.

Mediation is becoming an increasingly common way for separating couples to reach agreement over the terms of their divorce and so avoid the need for an acrimonious court hearing.

The process sees the pair attend a number of sessions where a mediator (an expert in family law who is specially trained for the role) will act impartially and guide them through discussions on the areas of disagreement.

Unlike an adversarial court hearing, where accusations and counter-accusations may be exchanged, mediation provides a neutral, safe and confidential environment where couples are encouraged to work together constructively to find solutions.

Advantages of mediation

• The process is usually quicker and cheaper than going to court, which can help reduce the financial and emotional strain of the divorce process.
• Mediation can help to avoid the acrimony associated with court cases, making it easier for the couple to maintain a constructive relationship following their divorce. This could be of particular importance if they have ongoing responsibilities over children or a business.
• Sessions are more flexible than court hearings and can be scheduled around work and childcare commitments.
• In addition to financial matters, mediation can help resolve other issues related to the divorce – such as future childcare arrangements.
• Unlike court hearings, mediation sessions are confidential. This can make it less stressful for couples and help them move on with their lives subsequently. The confidential nature of the sessions may also encourage people to talk more openly about their feelings.

Mediation has proved an effective way for many couples to reach agreement over finances. People using mediation still have the option to have any agreement incorporated into a consent order.

The legally binding nature of consent orders?

Following the initial drafting of a consent order, there is the opportunity for either party (in consultation with their solicitors) to request amends. This will often result in a period of negotiation between the two sides (sometimes with the aid of mediation) before agreement is reached and the consent order presented to court.

As soon as the court has approved the order it becomes legally binding. Should one party fail to comply with it the other can return to court and ask the judge to enforce the order.

The judge will consider the matter and, if they rule that a breach has taken place, can instruct the person responsible to follow the terms of the order in future.

As discussed earlier in this article, a key part of the legal process is that it aims to be fair to both parties. Should the judge believe that there is a good reason why someone breached a consent order, they may rule that a new order be drawn up. It is possible that any changes in the order will only be temporary. For example, if a person is unable to make maintenance payments because they are experiencing short-term financial difficulties, the judge may agree that the payments cease until their circumstances improve.

There are also occasions when the two parties decide it is in their mutual interests for the terms of the original consent order to be varied. In these cases, it may be necessary to draw up a new order and take it to the court for approval so that it becomes legally binding.

Do consent orders cover childcare arrangements?

The divorce process treats financial and childcare matters as two separate issues. A consent order will not cover who has custody of a child or how much contact the other parent will have with them (although it might include details of child maintenance to be paid).

Issues concerning the custody of a child of the divorcing couple are addressed in a Child Arrangement Order.

As with financial matters, the mediation process may be used as a way of finding solutions to disagreements over the future care of children following the divorce.

How much does a divorce consent order cost?

The court will charge a fee of £53 for considering a request for a consent order.

Should you and your partner each consult a solicitor over the drafting of the order, this will also incur a cost.

It is important to view the fees charged by your solicitor for their expert advice against the financial hardship that may result from a consent order that does not adequately protect your interests, or the stress and inconvenience that may result if the court rejects an order that has not been drafted correctly.

Where can I get more advice on consent orders?

At Wilson Browne we recognise that going through a divorce is likely to be an extremely stressful and emotional experience and one that can bring with it great financial concerns.
Our team of family solicitors have a wealth of experience which we will use to guide you through the process, explaining your options and acting at all times with tact, discretion and sensitivity.

The legal process concerning divorce may appear daunting but our dedicated experts can provide you with the reassurance of knowing that you are in safe hands.

With offices in Corby, Higham Ferrers & Rushden, Kettering, Leicester, Northampton and Wellingborough we can offer you a face-to-face meeting at a location near you.

We will also be very happy to make a home visit to clients with mobility issues.

To find out more about how we can support you at this time, please call 0800 088 6004 or complete our online contact form.