How to make your divorce settlement legally binding
Most divorcing couples now agree on how their finances will be divided voluntarily with a divorce settlement. Applying for a consent order makes the terms of this agreement binding, avoiding the risk of your spouse changing their mind in future.
Without a consent order, there is the possibility that your ex could make a claim for a share of your assets, property, income or pensions in the future. A consent order records the terms of the financial agreement you have reached with your former spouse and severs the financial ties between you.
Before applying for a consent order, it is strongly recommended that you seek expert legal advice on the terms of your settlement. Once a consent order has been issued, you have no legal right to change the terms of the settlement and would need your ex’s agreement if you needed to vary the terms of your settlement.
Our family law solicitors can help with all matters related to consent orders, including:
- Making sure the terms of your financial settlement are fair before you apply for a consent order
- Drafting a consent order application
- Negotiating with your former spouse over any amends needed to the draft consent order
- Responding to any changes requested by the court
- Agreeing any variation from the consent order with your ex
- Taking action if your ex breaches the consent order or accuses you of doing so
Take a look at our team to find a family law solicitor near you.
Speak to an experienced family lawyer about a consent order
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Key facts about consent orders on divorce
What is a consent order?
A consent order is a legally binding document issued by a court. It details how your joint assets are to be divided and will cover money, property, investments, pensions and savings. It may also include details of any spousal maintenance or child maintenance payments.
How to apply for a consent order in divorce
The consent order is filed with the court after your divorce has been conditionally accepted by the court, i.e. once the Conditional Order (formerly known as the ‘decree nisi’) has been granted.
It is sensible to pursue a consent order at the same time as, or soon after, you initiate your divorce proceedings to ensure there is no delay in obtaining the order from the Court.
In a consent order, the parties set out any financial agreement that they have reached at that time. It is the clean break part of the order that formally dismisses the right for you and your ex to ask for more money from each other in the future.
There is a formal process to obtain a consent order, including filling in forms and signatures from both parties. Your Woolley & Co lawyer will help you through this process.
Can a consent order be changed?
You may be presented with a draft consent order by your ex-partner or their solicitor. At this stage, you can ask for changes to be made or enter into negotiations to reach an agreement.
Once the consent order is approved and sealed by a Judge, it is legally binding and cannot normally be altered or varied in any way. However, there are examples of where it is preferable for both parties to do something different to what was agreed in the consent order.
For example, your consent order says that you will sell the family home but decide instead to transfer it from joint names to one of the parties, or you decide to pay a lump sum instead of ongoing maintenance payments. In cases like this, you will need to consider the content of the original consent order and may need to have the consent order re-drawn and resubmitted to the court for approval.
If you are in this position, your Woolley & Co lawyer can help you through the process, advise on your options and prepare the necessary paperwork.
How often does a judge reject a consent order?
A judge will only approve your consent order if they think it is fair to both parties. If they do not think it is fair, they can ask that it be changed and resubmitted. If both you and your ex have had legal advice on the contents of the consent order (and followed that advice), it is less likely to be rejected.
What happens if you don’t get a consent order when getting divorced ?
Without a consent order, your ex can change their mind about your financial agreement at any time (even if you have already put it into effect).
If your consent order does not include a clean break, if you win the lottery, receive an inheritance, or simply get a better job and start earning more, then your ex-spouse might be able to claim a share of your newfound wealth.
Once drafted, approved and signed by both parties, the consent order is submitted to the Court for approval. The procedure is very straightforward and does not involve either party attending court in most circumstances. The Court may ask a few questions before the Order is approved, but these can be dealt with simply by letter.
What happens if a consent order is breached?
If one of the parties fails to carry out the obligations set out in the consent order, this is a breach of the order. The other party can ask the court to have the consent order enforced.
If the court agrees that there has been a breach, then the person in breach will be required to meet the terms of the order and cover the costs involved in bringing the case to court.
In some circumstances, the person breaching the order may be unable to fulfil their responsibilities (for example, if they have lost their job and are unable to make maintenance payments). The court may allow the party to stop payments until they find a new job. This would be reflected in an order.
If you believe your consent order has been breached and need help with enforcement, speak to Woolley & Co on 0800 321 3832.
Four reasons you need a consent order
1. A consent order can help to avoid future disputes
Having a consent order makes it less likely that you and your ex will fall out over the terms of your financial settlement in future, helping to minimise the risk of any future court litigation (and, therefore, costs).
Agreeing and formalising the terms of your settlement with a consent order leaves less room for confusion or disagreement over what was intended, reducing the potential for future disputes.
2. A consent order allows you to enforce any settlement made if one party defaults
For example, if one party has agreed to pay an amount in respect of the other party’s interest in the property they were living in, and they do not pay, it is possible to apply to the court to enforce the agreement.
If there is no consent order, this could be disastrous, especially if the property is in a sole name. The party who owns the property in their sole name could legitimately sell the property and move away, defeating any claim, unless there is a Restriction on the property – a measure often overlooked unless professionally advised.
3. A consent order protects you and your estate against any future claims by your ex
Any agreement reached now will be based on the income and assets of the marriage at this point in time. A consent order protects you and your estate against the risk of your spouse attempting to claim a share of any increase in your income, windfalls such as inheritances and even your estate after your death.
4. A consent order gives you certainty and peace of mind
Making your divorce settlement binding with a consent order creates certainty as to the future and allows both parties to concentrate on more important issues, such as effective parenting.
Our family law solicitors nationwide are here for you
Getting a consent order provides security and peace of mind, giving you a clean break from your ex. Our team are here to guide you and make the process of getting a consent order as simple and stress-free as possible.