A consent order records a financial agreement and severs the financial ties between a married couple. Whilst getting a divorce ends the contract of marriage it does not finalise the financial aspects of your relationship. Agreeing a divorce settlement is one step but unless you enter into a formal agreement (known as a consent order) and ensure you have a financial clean break your ex could make a claim for a share of your assets, property, income or pensions in the future.
A consent order is a legally binding document. It explains how your joint assets are to be divided, and will cover money, property, investments, pensions, savings and may also include details of any spousal maintenance or child maintenance payments.
How to apply for a consent order
The consent order is filed with the Court after Decree Nisi has been pronounced by the court in divorce proceedings. 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.
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.
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 to 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.
Why you need a Consent order
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 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 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
- It can alleviate any future court litigation (and therefore costs) if you are able to agree now what the terms of your settlement will be.
- It 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.
- Any agreement reached now will be based on the income and assets of the marriage at this point in time. If a clean break is appropriate, meaning that no future financial applications can be made against either party, then you are best to secure that now than be open to any applications in the future – or even against your estate after your death.
- It creates certainty as to the future and allows the parties to concentrate on more important issues such as effective parenting.
For advice on getting a consent order and financial clean break contact Woolley & Co on 0800 321 3832.