Consent Orders – an overview
Do I need a Consent Order when I get divorced?
This is one of the most common questions asked when parties to a marriage divorce.
Most people know that if you’re married and you separate, if you want that separation to be formal you need to divorce. What people sometimes don’t know or choose to ignore is what happens to the claims you have against each other as former spouses / civil partners?
The short answer is: yes you do need a consent order. Without one your claims against each other in relation to income, capital, pension remain open.
You can be divorced and still have a claim against your ex spouse / civil partner if you have not finalised the situation by way of Consent Order. In the absence of a Consent Order either party could make a financial claim against the other in the future.
You can get divorced without a consent order as they are separate legal proceedings, but this is really not advisable. An individual can apply for a consent order once a conditional order (or decree nisi) has been made, but it is not binding until the court has approved it and you have obtained a final divorce order (or decree absolute, if divorce proceedings were issued before 6 April 2022).
If you are already divorced but have not yet dealt with the finances you can still deal with the Consent Order. It is advisable however that you do not delay in doing so. There are potential pitfalls to delays.
How many people have a consent order on divorce?
It was interesting to read in the ‘Fair Shares’ report – link attached below – that around two thirds of divorcing couples do not have a consent order on divorce.
This is quite unnerving to a family solicitor because we know what a separating party may be losing out on if they don’t have an order that deals with their finances on divorce. Most commonly, women lose out on pension provision and statistically they are financially worse off even after 5 years post divorce (even where they have re-partnered) than they were prior to the separation.
We are aware that the costs of solicitors can seem daunting, however, even a bit of quality advice could mean a big difference to the quality of your financial living standards now and far into the future.
https://www.bristol.ac.uk/media-library/sites/law/news/2023/Fair%20Shares%20report%20-%20final.pdf
What will a Consent Order deal with?
A consent order is the legal process of concluding financial arrangements on divorce and is key to ensuring both parties receive a fair split of their finances and assets.
A consent order sets out how the finances will be split between both parties and can include savings, property, pensions, debts and investments.
It can also contain provisions for regular payments between the parties, including child maintenance. However, payments relating to the children are only legally binding for 12 months, after which the Child Maintenance Service (CMS) has jurisdiction should either party apply for an assessment.
A consent order can also prevent either person from making a financial claim against the other in the future.
A clean break consent order
Many people talk about a ‘clean break consent order’ but don’t necessarily know what it means. This type of order can be made in relation to income or income and capital. Such an order severs the financial ties between a couple on divorce.
A clean break in relation to income and capital may be made when the parties do not have any assets or liabilities they intend to divide, for example, where each party has their own bank accounts and there is no property to be divided. There may also be no provision for ongoing maintenance for a spouse where both parties earn comparable amounts. This would be an immediate clean break.
A clean break can also be deferred until a future date, so spousal maintenance may be made for a fixed term, after which a clean break would be effected.
A clean break order made by consent allows a couple to end their financial commitment to each other and makes it clear that neither can make a financial claim against the other in the future, including contesting a will.
Do I still need a consent order if we have no financial assets?
Ideally, yes. You should consider getting a clean break consent order even if you do not have any assets. This will ensure any future claims between you and your ex spouse / civil partner will be dismissed. Without a consent order, there is always a possibility of a future claim being made.
How do we agree a consent order?
You can either agree on the terms of a consent order between yourselves or through a third party such as a solicitor, mediator or family member. We also offer collaborative law to reach agreement. You can also find yourself reaching agreement in the court process. If you have both agreed, it is worth instructing a solicitor to review the terms of the order and give their opinion as to whether a judge is likely to approve the consent order.
How Keelys can help
We are experienced family law professionals who have dealt with many financial orders over decades. You can speak with us confidentially at an early fixed fee appointment for an overview of the procedure and legislation and case law that may apply to your case. We can assist with the divorce, embodying an agreement into a consent order, assisting you through solicitor negotiation, mediation or reaching agreement using the collaborative law process. Ultimately if you are unable to reach an agreement, we can deal with your case in a court application until resolution is achieved.
We can look at each area of your finances and consider how your income, pension and capital / debts should be divided to meet your needs, so that you know that you have taken the best steps to securing your financial future.
We have helpful contacts within our corporate, tax and conveyancing departments and external business valuation experts and pensions experts.
Contact our family team for more information:
Jslater-williams@keelys.co.uk | 01543 420011
mbell@keelys.co.uk | 01543 420031
jcox@keelys.co.uk | 01543 420047
nmalik@keelys.co.uk | 01543 420041