Financial Consent Orders – Divorce Solicitors

Misconceptions

If you are going through a divorce, a financial Consent Order may be one of the most important things you need to think about.

One of the biggest misconceptions with divorce is that a divorce ends the financial relationship between a husband and wife. It does not.

Spouses automatically have a right to make financial claims against each other as a result of their marriage. A divorce does not end these. These claims must be addressed separately. Often, this is by a Consent Order. In this article we answer the common questions asked about Financial Consent Orders starting with:

What is a Consent Order? 

A Consent Order is a document that records an agreement. Once the Court has approved the Consent Order, it becomes legally binding.

A Consent Order can refer to any type of agreed Order. This can include an Order setting out arrangements for children. However, typically it refers to an Order setting out agreed terms for financial settlement alongside a divorce.

What is included in a Financial Consent Order? 

A Consent Order for a financial settlement sets out what spouses agree will happen to their finances. This may include:

• background information about the reason for the agreement.
• what will happen to personal belongings and the contents of the Family Home.
• whether any lump sum payment will be made.
• whether any property ownership will be transferred.
• what will happen to any joint bank accounts.
• whether any spousal and/or child maintenance payments will be made.
• who will be responsible for any debts.
• whether any pensions will be shared.
• the timetable for any payments or transfers.
• dismissal of the financial claims open to spouses.

What is a Clean Break Consent Order? And how does a Clean Break Consent Order differ from a Consent Order?

They can be the same. A Consent Order is any type of agreed Order. Whereas a Clean Break Consent Order is a Consent Order which includes a ‘Clean Break Clause’.

What is a Clean Break Clause?

A Clean Break Clause ends the financial claims that are open to spouses. This means that neither spouse will be able to make a further application for financial provision in relation to the marriage now or in the future. This can include making an application on the other’s death.

A Clean Break Clause, therefore, protects any money or assets earned or received in the future. Such as any gain with career progression, by way of a gift, lottery win or inheritance.

Do I need a Consent Order?

Generally speaking, yes. Without one, your ex could make a financial claim against you years after your divorce. This is because contrary to popular belief, a divorce does not end the financial relationship between spouses. 

Therefore, if you do not apply to the Court for a financial Order, whether by an application to Court or by a Consent Order, then you leave your finances open to potential claims in the future. This remains the case even if you have a separation agreement.

It is therefore important to consider the need for a Consent Order even if you have agreed and distributed the assets you have or you have no assets.

The risk is, if you were lucky enough to win the lottery or inherit a large sum of money after your divorce, without a financial Order, your ex could make a claim against you. A Consent Order would stop this.

There have been several cases in the past few years where former spouses made an application for financial orders years after their divorce. Most notably, the case of Wyatt v Vince where the Wife successfully applied for a lump sum 18 years after her divorce. The Wife was awarded a sum despite the Husband’s wealth having been accrued from a business founded after their separation. A Consent Order would have prevented this.

A Consent Order also protects you if your ex changed their mind (and vice versa). In addition, if your ex does not keep to the agreement, you will be able to enforce it if needed. For example, if your ex suddenly stops paying your agreed spousal maintenance for no reason, you can rely on the Consent Order to ensure that you receive the agreed amount.

How do I apply for a Consent Order?

You apply for a Consent Order by sending the following to the Court:

• the Draft of the Order you seek to be approved. This must be signed by both parties (together with two copies).
• a Statement of Information for a Consent Order form (D81 form).
• a Notice of an application for a financial Order form (Form A). The words ‘for dismissal purposes only’ are to be included at the top of the form.
• the Court fee of £58* (correct at the time of writing). *As updated 1 May 2024. 

What is a Statement of Information form for a Consent Order (D81 form)?

A Statement of Information form, or D81 form, provides information about the financial circumstances of the parties to the marriage. This form supports an application for a Consent Order. It allows the Court to see the before and after effect of the agreement. The form includes: 

• the date of marriage, separation, the decree nisi and the decree absolute, if applicable.
• the date of birth of the parties and any minor children.
• a figure for:
  • all property assets owned by each spouse ignoring any mortgages.
  • other capital assets. Such as the total value of the bank accounts, savings, investments, vehicles, and other valuable items owned by each spouse.
  • any debts and liabilities, such as loans, credit cards or overdrafts held by each spouse.
  • any pensions each spouse has. A Cash Equivalent Transfer Value (known as a CE, CETV or CEV) should be requested from each pension provider for this.
  • each spouses’ net monthly income to include all sources of income. Such as earnings, state benefits, child support, and maintenance payments, rental income and any other income received.
• brief details of both spouses intended living arrangements and of any new relationship.

Both parties must sign a Statement of Truth to confirm the contents of the form are true. The signing of a Statement of Truth is like giving an oath or swearing on the bible as you see in films. There can be serious consequences if you are later found to have withheld information or provided false information. In extreme cases, the Court could overturn the Order and revisit the financial settlement.

What is a Notice of an application for a financial Order (Form A)?

Form A starts the application for a financial Order. This form is usually used to start formal Court proceedings where an agreement cannot be reached. However, when a Consent Order is sent to the Court, this form should be sent for dismissal purposes only.

When do I apply for a Consent Order? 

You can apply for a Consent Order at any time after the pronouncement of the Decree Nisi. It is often preferable to prepare a Consent Order in readiness for this date to ensure that it can be sent to the Court at the earliest time.

A Consent Order will only become binding once the Decree Absolute is granted.

Will I need to go to Court (a hearing) for a Consent Order?

In most cases, the Court deal with a Consent Order on a ‘paper’ basis. This means that the Judge considers the Consent Order and the D81 form without the parties or their legal representatives needing to be present. It is rare to need to attend the Court for a hearing on an application for a Consent Order.

Can a Judge refuse to grant a Consent Order?

Yes. If the Judge is not satisfied that the Consent Order is broadly reasonable, they can refuse to grant the Order.

However, typically if the Judge considers the outcome of the Order may not be fair, they invite the parties to explain why the Order should be made. In the first instance, the parties are usually invited to provide further written details. Thereafter, the Judge may require the parties to attend a hearing. Finally, if the Judge still does not think the Order is fair, they can refuse it or ask you to change it.

Do I need a solicitor to get a Consent Order?

A Consent Order should be drafted by a solicitor who specialises in financial settlements. This is because the legal principles around financial settlements are complicated. Consent Orders can be more so. Unlike child arrangements, which can be revisited because they are determined by the best interests of the child at the time, a financial Consent Order is final. It requires precision, expertise and knowledge of the important legal principles surrounding financial settlements.

Furthermore, the Court like to ensure that both spouses have taken legal advice where possible. The Court want to know the parties have understood the agreement and any rights they are giving up. A Specialist Family Law & Divorce Solicitor can therefore advise you and protect your interests.

If you have recently separated and are seeking advice about your rights on divorce or you would like further information 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.