What is a consent order?

Divorce | 22 Sep 2020 1

A consent order is an order made by a judge in divorce proceedings, where both parties have agreed their financial settlement terms and agree to a financial order being made without the need for a court hearing. 

What is a consent order? 

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 a divorce.  

A consent order is traditionally the endpoint of any divorce settlement.  

Why do I need one? 

It is surprising to a lot of people that a divorce does not end the financial relationship with your ex-partner. So, if you get divorced and don’t get a consent order, your ex can still make financial claims against you in the future (if they have not remarried) even after many years have passed. 

If you do not apply to the courts for a financial order, then you leave your finances open to any potential claims in the future. 

A consent order also can include details on spousal and child maintenance arrangements, so a court could enforce these if the maintenance is not paid. 

What does a consent order do? 

A consent order is a legally binding document that sets out the financial arrangements that you and your partner agree on.

This financial consent order contains information about how you will split any assets, debts, pensions and income once you are divorced. Because it is a legally binding document, it will protect you both if anyone tries to change their mind in the future. 

A consent order will often include a “clean break clause” which protects any money or assets that you may earn or receive in the future from being claimed by your ex-partner. 

For example, if your career were to progress, or you inherit some money, or win the lottery after your divorce, a consent order with a clean break clause would prevent your ex from claiming part of that money.  

What information do I need to provide for a consent order form? 

You will need to complete a Statement of Information (D81) which gives a snapshot of your current financial position. This form requires the following information: 

  • Your assets (e.g. bank accounts, business assets, properties, vehicles) 

  • Your debts (e.g. credit cards, loans) 

  • Your pension (you will need to provide a CETV – Cash Equivalent Transfer Value for each pension you may hold) 

  • Your income (you will need to include earnings, benefits, rental income, maintenance) 

What is included in a consent order? 

With help from your family lawyer, a consent order will set out what you and your ex-partner have agreed is to happen to all the assets that you have listed in the D81 Statement of Information. 

It will also determine any spousal or child maintenance that may apply. 

It can include any lump sums that may be transferred between you. 

It will refer to any pension sharing orders to be made. 

It will set out a timetable for when payments will be made, or assets transferred.  

To help a judge understand the rationale for how you’ve decided to split your assets, it is a good idea for the consent order to explain what you are seeking to achieve. The judge will check that this is fair and achievable. 

Things to consider when applying

Once the order has been drafted, and the other party or their solicitor has agreed its terms, it will be sent to the court for approval and endorsement. 

It is important to note, however, that it is not merely 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, so you cannot assume that the judge will grant your order. 

The court will still want to ensure that the order is broadly reasonable. For example, you cannot assume that a 50/50 split is fair. The judge will take into consideration the means and circumstances of both parties. 

Who decides if my consent order is fair? 

How the court checks whether the order is reasonable and fair 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, and 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 claim against each other. 

When do I apply for a consent order? 

You can apply for a consent order at the decree nisi stage of divorce proceedings. Or, anytime after the decree absolute, providing neither of you has remarried. 

Usually, a consent order is prepared in readiness for when the decree absolute is granted. 

Once the decree absolute is in place, the consent order becomes legally binding.  

How long does it take to get a consent order? 

If the court approves the order, it will seal it and send copies to both parties, or their solicitors. 

If the contents of your consent order are very straightforward, the court usually takes 6-10 weeks to process the application. However, this is dependent on which court you use to file the order with.  

How long is a consent order valid? 

A consent order is valid indefinitely. A consent order does not expire. 

Do I need a lawyer to get a consent order? 

Well, Julian Hawkhead, Stowe’s Senior Partner,  explains drafting a consent order 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. 

A family lawyer will be able to help and advise and to protect you to ensure the best outcome for your future.  

Get in touch 

If you would like further advice, please do contact our Client Care Team here to speak to one of our specialist divorce lawyers.

Mark Christie is the head of Stowe Family Law’s dedicated Children’s Department. Mark has specialised in family law for more than 35 years and provides clients with a wealth of practical experience.

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Comment(1)

  1. Andrew says:

    “A consent order will often include a ‘clean break clause’ which protects any money or assets that you may earn or receive in the future from being claimed by your ex-partner.”

    True of course: but (professional) experience suggests that clients should be warned that it cuts both ways and that it’s no use complaining that your ex-spouse has prospered and you haven’t – the order ways what it says and means what it says, it’s final.

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