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Consent orders - what is a consent order?

A binding agreement on your finances when you divorce

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.

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.

What is a clean break in divorce?

What is a Clean Break in Divorce?

Rebecca Franklin,
Divorce & family lawyer Birmingham

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.

Reasons you might NOT want a clean break order

A clean break is not always appropriate. This may be because it is appropriate for one person to pay maintenance to the other to equalise their incomes or to provide a period of security until children are grown or until pension payments can be made.

That does not mean that you cannot have a clean break at some point. Provided you can be certain when a change will occur e.g. when children will finish school, or when your ex will have retrained in a new job it is possible to have a deferred clean break Order. This is a binding Order that provides for a clean break when certain conditions have been fulfilled.

Where the circumstances are too uncertain for a clean break if, for example, a family business is likely to be floated or planning permission is awaited that may significantly enhance the value of a property, it might be necessary for certain claims to remain alive until the position becomes clear. If you believe that your income is likely to decrease significantly, or you think your ex’s income or assets may increase significantly in the near future then it may not be in your interests to have a clean break.

Whether a clean break is appropriate or not, you should always have a consent order.

For advice on getting a consent order and financial clean break contact Woolley & Co on 0800 321 3832.

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