Consent order – What is it?
In order to finally reach an agreement with your ex-partner on financial considerations it is very important that you formalise this in writing. A verbal agreement is not sufficient so you will need to get what is known as a consent order. Consent orders need to be presented to the court in a legal format, but it does not necessarily have to be produced by a solicitor. This guide will take you through the consent order process.
a. What is a consent order?
Consent orders are not compulsory, but are a voluntary method of arriving at an agreement on financial matters that are pertinent to their marriage. The order will include agreement on a number of financial matters relating to assets and liabilities whether these comprise housing, pensions or loans.
b. What does a consent order cover?
A consent order will usually consider:-
• Property, which is usually the family home.
• Shares, or other financial assets which are liquid, meaning that they can be turned into cash easily.
• Pensions and savings.
• Child maintenance, meaning an allowance that is paid to the parent who has primary custody for the child.
• Spousal maintenance, meaning an allowance that is made to your ex-partner. This compensates for salary differentials.
• Claims on future inheritance.
c. What is a ‘clean break’ consent order?
A clean break consent order means that there are no other payments on a monthly basis other than child maintenance. Unless there are circumstances where it would cause difficulty (in terms of financial considerations) the courts usually prefer clean break consent orders. This is a decision which the court will take.
d. Who can produce a consent order?
• A consent order does not have to be drafted by a solicitor, but it does have to be in a format which is acceptable to the court.
e. What advice should I get?
• You need to take legal advice before you enter into a consent order.
• Consent orders have to be signed by both parties.
• A judge will decide on whether to approve a consent order through a family court.
f. Can’t we just write our own consent order?
The technical expertise required to write a consent order is high. It is not something that can be attempted by the layman. This is because of the official status of a consent order. It is actually a legal document which has special contractual status. Various courts can enforce a consent order. From County, Magistrates through to High Court – all can enforce a consent order. A piece of paper where you have agreed your own ‘informal’ consent order does not have the same legal status. This is because it is not binding. It has not legal power, and the parties who have signed it can not be compelled to meet its conditions. As with any technical document, the wording is extremely important, and only a legal expert with sufficient training can produce a consent order.
g. Is a consent order really necessary?
It is important to demystify the divorce process and to think about what it means in practice. There are formal protocols, which must be followed, in bringing a marriage to an end. However, in practice these involve following a set of formalised legal procedures between a solicitor and a county court judge. What people don’t know is that although this brings the marriage to an end it does not deal with other important matters. In particular, it does not involve considering what are, for most couples, a primary consideration, which is how property and assets are to be divided. This means that in the future you may be liable to your partner making a significant financial claim against you.
In some cases it is actually not necessary to get a consent order at all. If there are no assets or liabilities to decide upon, or if you can reach an informal, tacit, agreement then you can go ahead without a consent order. However, although it is not necessary to get a consent order this does not mean that you should not consider getting one. In particular, things change in relationships. Verbal agreements are notoriously known for breaking down. This is because there can be significant change in people’s relationships over time. New partners can enter the scene and people’s views on their older relationships can change. It is obviously a good idea to protect yourself through a consent order.
We would advise that you contact us to prepare a consent order for you, even if you think that everything is settled at present. Then we can get it agreed by a judge in a court.
h. What is included in a consent order?
A consent order usually includes the following, although this list is not comprehensive and will differ according to your individual circumstances:-
• The financial considerations of the divorce.
• The division of assets.
• Child maintenance.
• Spousal maintenance.
• What is to happen to property. Whether property is to be sold, how it is to be divided, and what will happen to the proceeds.
• Pension sharing, if necessary.
• The division of shares and future dividends.
i. Are child residency agreements covered through a consent order?
No, child residency and similar considerations are not covered through a consent order. A consent order does not cover child contact arrangements.
j. Is a consent order set in stone?
The consent order is a legal document and has a special legal status and so you should take advice before you sign it. A consent order can only be altered if the ex-wife and ex-husband both agree to us. Rarely, another judge can decide that a consent order can be made if there is an application to the court. Basically, both parties must agree to change a consent order except in a few exceptional cases.
• Dishonesty when completing the consent order will mean that the order can be set aside.
• If an unexpected event happens that could not be anticipated in the order then it may be set aside.
• The order must be signed of the parties own free-wills, no coercion or force may be used. If this is not he case, then the order can be set aside.
In terms of the legal process, our advisors can help you with the consent order. The order is rubber-stamped by a judge on completion.
k. Can I complete a consent order alone?
No, you can not. By their nature, they must be a free and mutually agreed statement between the ex-husband and ex-wife. We suggest mediation if a consent order can not be agreed upon. Other alternatives are to take the legal route or to continue with the negotiations.
Sometimes, one of the parties is unreasonable and refuses to complete the order. In that case, a legal route can be taken and you can apply to court.
l. Is the consent order always accepted?
The judge will ultimately decide if the order is accepted. In doing so they will ask a number of questions:-
• Fairness – are the legal and financial agreements fair and reasonable?
• Are the arrangements fair to children, if there are any?
• Was it completed under duress?
• Has it been completed accurately?
• What advice (legal) did parties look for before completing the agreement.
In making these judgements, the judge will be looking at legal precedents to work out whether the case is fair. Judges do have some discretion in deciding this.
m. What if the judge has further questions?
In this case, the judge will either contact you in writing to ask for more information. They may even convene a court hearing to find out more facts about the case.
n. What if we don’t want to divorce – is a consent order still achievable?
No, if you are not getting divorce you can not get a consent order. In this case you will have to get a separation agreement. This also includes financial agreements but it is not as legally binding as a consent order.
A separation agreement is not as binding as a consent order but it is provides a minimal level of protection. For example, a judge may consult this in deciding upon their decision.
o. What if a party does not sign the consent order?
If an ex-husband or ex-wife refuses to sign the consent order then there are several solutions:-
• Mediation is one way to reach an agreement. It must be noted that consent orders often are sent back and forth between parties.
• If a party backtracks without good reason, then it is possible that the agreement can be ‘sealed’ by a judge.
• Caution is required, as when an agreement is reached in front of a judge you can not back out of this.
p. Is there a typical consent order?
Because every consent order is different, depending upon individual circumstances, it is not possible to say that there is one consent order for every couple. However, you can see examples of typical consent orders if you ask for our advice.