If you are going through divorce proceedings the chances are you will come across the term ‘consent order’ at some point, but what exactly does it mean?
Technically, the term ‘consent order’ can refer to any type of court order agreed by the parties, for example an order setting out agreed arrangements for children. However, the term most often arises when referring to an order setting out an agreed financial/property settlement following divorce, and that is the sense in which I am using it in this post.
Why is an order needed? Quite simply, to ensure that the settlement is final and enforceable. If no order has been made then, unless they have remarried, either party can go to the court and make a financial claim against the other, even years after the divorce took place. And if one party does not keep to the terms of the settlement the other party will need to ask the court to take steps to enforce the settlement, but the court can only take enforcement action if the settlement has been incorporated into a court order.
How do you get a consent order? Well, as Stowe Family Law’s Managing Partner in Yorkshire Julian Hawkhead explained here just recently, drafting a consent order for is a job for a solicitor. As he said: “Composing any kind of legal document is a skilled job, requiring precision and an appreciation of important legal principles.” In any event, the court will probably want to ensure that both parties have taken legal advice before the order is made.
Once the order has been drafted and its terms gave been agreed by the other party or their solicitor, it will be sent to the court for endorsement. It is important to note, however, that it is not simply a matter of sending the order to the court and the court rubber-stamping it. The court is not obliged to make the order just because both parties agree to its terms. The court will still want to ensure that the order it is being asked to make is broadly reasonable.
The way in which the court checks whether the order is reasonable is to require each party to file a ‘Statement of information for a consent order in relation to a financial remedy’ form, setting out brief details of their means and circumstances. The statement includes such information as the ages of the parties, details of any dependent children, the capital and income of the parties and whether they are in a new relationship.
With this information the court should usually be able to determine whether the terms of the consent order are reasonable. However, there will be instances where the judge is not satisfied, in which case they may require the parties to attend court to explain why the order should be made. If the judge is still not satisfied that the order is reasonable, then they may simply refuse to make the order. This will mean that the financial/property settlement is not final, so that either party could still make a (further) claim against the other, as mentioned above.
If the court does approve the order it will seal it and send copies to both parties, or their solicitors.
The last important point is to do with the timing of the order. Normally, it will be obtained before the divorce is finalised by the decree absolute (it can’t be made before the pronouncement of the decree nisi), or simultaneously with the decree absolute, as it is usually best not to finalise the divorce first. Note, however, that the order will not take effect until the decree absolute.