DIY Consent Orders – Divorce Solicitors

Can I write my own Consent Order on divorce?

Technically, you can draft your own Consent Order on divorce. It is however important to bear in mind that when the Court receives a Consent Order application the Judge considers whether the agreement is fair before they can ‘rubber stamp’ it. Once approved by the Court, the Consent Order becomes a legally binding document which formalises the financial settlement between ex-spouses.

It is therefore important that you understand the legal implications. It is also important you understand what the Judge takes into account when considering what makes a settlement fair. As a result, we recommend that a solicitor or legal professional who understands the legal process and has experience in drafting Consent Orders helps you prepare your Consent Order to ensure that it reflects your intentions and protects your rights and interests.

But, what makes an agreement in a Consent Order application fair?

The law on this area is set out in section 25 of the Matrimonial Causes Act 1973.

That said, there is no set formula for how assets are to be divided or what maintenance payments, if any, are to be made on divorce or separation. Each case is different and decided on its facts.

There is also no automatic presumption that assets owned jointly will be divided, nor that if an asset is owned by one spouse alone the other has no claim upon it. Often the key factor is the reasonable needs of you, your spouse, and your children.

Section 25 factors

The Court’s first consideration is always to the welfare of any children of the family under 18. Thereafter, the Court must consider various factors, including:

1. the income, earning capacity (to include any increase where the Court considers it reasonable for a spouse to take steps to increase income), property and other financial resources including pensions which each spouse has or is likely to have in the foreseeable future.
2. the financial needs, obligations, and responsibilities which each spouse has or is likely to have in the foreseeable future.
3. the standard of living enjoyed by the family before the breakdown of the marriage.
4. the age of each spouse and the duration of the marriage.
5. any physical or mental disability of each spouse.
6. the contributions which each spouse has made or is likely to make in the foreseeable future to the welfare of the family, including any contribution by looking after the home or caring for the family.
7. the conduct of each spouse if that conduct would be inequitable to disregard.
8. Where relevant, the value of any benefit that a spouse would lose the chance of acquiring by reason of the ending of the marriage.

Fairness

The aim of the Court is to achieve fairness. The Judge will therefore weigh up all the factors and consider whether some are more significant than others as appropriate to each individual case. There is often a range of reasonable outcomes on any given set of facts which is why it is beneficial to obtain independent advice from a solicitor to understand the implications of the options available during the agreement process.

In practical terms, what does this mean the Judge is looking for?

The Judge wants to know that the following has been considered:

1. You and your ex-spouse have told the other about all the assets and debts in your names irrespective of whether you are sharing such assets or not. This includes income, savings, investments, vehicles, collectables, pensions and debts.
2. You and your ex-spouse understand your respective net (after tax) monthly incomes to include income from all sources such as salary, dividends, unearned income, benefits, rental income, pension income or maintenance.
3. You and your ex-spouse agree on the value of the assets, pensions and debts you have in your names and have provided evidence of valuations where required. For pensions, this should include considering what you will be eligible for by way of state pension and for each private pension this should include Cash Equivalent Transfer Values (CETV’s).
4. Your settlement ensures that you both can meet your monthly expenditure. This includes considering payments for  your children.
5. Your settlement ensures that your children have a secure home.
6. Your settlement ensures that you both have a home to live in and where appropriate you have considered your respective mortgage capacities and how that affects what you can afford to buy.
7. Your settlement recognises that marital assets are to be divided between you and in terms of pensions this ensures that you both have income in retirement.
8. You are both satisfied that your settlement meets both of your housing and income needs now and in retirement and that any children of the family have been prioritised.

Common Questions About Consent Orders 

You can find the answers to the following common questions asked about Consent Orders on divorce here…

• What is a Consent Order?
• What is included in a Financial Consent Order?
• What is a Clean Break Order?
• Do I need a Consent Order?
• How do I apply for a Consent Order?
• What is a Statement of Information form for a Consent Order (D81 form)?
• What is a Notice of an application for a financial Order (Form A)?
• When do I apply for a Consent Order? 
• Will I need to go to Court (a hearing) for a Consent Order?
• Can a Judge refuse to grant a Consent Order?
• Do I need a solicitor to get a Consent Order?

If you would like further information on divorce or about Consent Orders, please contact Gemma Keats on 07874 349555 or by email to gemma@keatsfamilylaw.co.uk to see how she can best support you.