Why you need a consent order
Consent orders are legally binding documents that formalise the specifics of the financial obligations agreed between a divorcing couple. They can include:
- Financial claims such as capital income and pensions to be distributed
- Defining an end date for claims. to stop them continuing indefinitely
- Forcing an ex spouse to pay delayed or withheld maintenance payments
- Ensuring that certain assets such as pensions are paid
The consent order is the only means by which you can be certain that any agreement will be be upheld by both spouses.
Marriage opens up financial obligations towards your spouse, and those obligations are not automatically brought to an end by the divorce proceedings. Indeed, the decree absolute of divorce only brings to an end the contract of marriage and divorce opens up the possibility of making financial claims against your spouse, to enable capital, income and pensions to be distributed following the breakdown of the marriage. Unless there is a separate order that also dismisses or otherwise deals with the financial claims that are available upon divorce, those claims remain open indefinitely. This is the case even if you and your spouse reach an agreement directly and divide your assets between you. There have been cases where people have tried to make financial claims many years post separation, where in the intervening period one party has acquired significant wealth. Whilst such an application may or may not succeed, and the Court will consider what has taken place in the period since separation, the passage of time can make obtaining clear evidence about the historic value of assets difficult, and so the possibility of future claims may be a concern.
Future Financial Claims
It is important therefore to understand that even if you have a documented agreement, unless this is an order of the Court it may not be upheld in a future financial remedy proceedings, and the Court could decide that a different outcome is appropriate. This means that post-divorce, you may move forward with your life believing you are building your future for your own benefit, only to find you are met with a claim from a former spouse many years down the line. To prevent this, any agreement reached should be formalised by a consent order, which the Court can approve once the divorce has got to the decree nisi stage.
In addition, if you reach an agreement voluntarily and do not get a consent order and one party subsequently fails to uphold it, there is nothing you can do to enforce the agreement. For example, if one party agrees to pay maintenance but then stops making payments, without a Court order that person cannot be forced to pay. Likewise, failure to deal with any other aspect of an agreement cannot be enforced.
Certain assets – for example pensions – can only be distributed between divorcing spouses once an order is made. Pension trustees can only transfer pension assets once a Court order is made. Pensions are for many people their most valuable assets, and any agreement that ignores their value may mean that a party is missing out on significant financial provision that would otherwise be available to them.
In summary therefore, a consent order is the only means by which you can be certain that any agreement reached voluntarily between you will be binding upon you both in the future.
Get in touch today to discuss your financial issues.