Consent Orders ( or clean break agreements)
When you get divorced you will need to reach an agreement with your ex-spouse on financial matters.
It is important that your verbal agreement is formalised by signing a Consent Order.
1. What is a consent order?
A consent order is a financial contract that is voluntarily and jointly agreed by a divorcing or divorced couple to finalise all financial obligations arising from their marriage.
Depending on your circumstances the order will include:
- Liquid assets: this is anything jointly or soley owned that can be sold for cash, for example property or shares. In fact anything that can be sold, is in legal terms a realisable asset.
- Pensions: although a pension cannot be sold it is still an asset that can be shared by agreement.
- Maintenance: there are two versions, child maintenance and spousal maintenance. Child maintenance is paid to the parent who has the child or children for the most nights in the year, spousal maintenance is payed to an ex-spouse by the higher earner, to compensate for the difference in their salaries.
- Inheritance: consent orders typically include a clause to dismiss claims on future inhertitances.
A Consent Order is a legally binding financial agreement that should be:
- drafted by a solicitor
- signed by you and your ex-spouse after you have have both provided financial disclosure and taken legal advice
- reviewed and approved by a judge in a family court.
Consent Orders which do not include spousal maintenance are commonly know as a "clean break" agreement, because there are no ongoing monthly payments other than child maintenance (where applicable). The courts generally prefer clean break agreements where possible (i.e. where is doesn't cause hardship).
2. Do we really need to get a consent order?
When a couple decide to divorce they follow a formal process to end the marriage, its actually a paper work exercise usually with a solicitor corresponding with a County Court Judge, but this only ends the marriage, what it does not deal with is the division of property and whether any maintenance should be paid or pensions shared.
If you divorce without a consent order then you need to be aware that your ex-spouse may be entitled to make a financial claim at any point in the future - even after many years have passed.
Some couples decide to divorce without a consent order because they may have nothing to share or even they are happy just to agree a division informally, it maybe amicable and they trust each other, the problem is as time goes by that agreement may breakdown, a new partner may come along or friends and family may persuade one person that actually the agreement wasn't really fair, if this happens a claim can be made in court.
Its also important to remember that assets you develop after divorce potentially can be included in a claim made after divorce.
The simple solution to remove any uncertainty in the future is to have a solicitor write a consent order and have them send it to court to be agreed by a Judge.
3. Can we write our own consent order?
The short answer is no. A consent order is a legally binding document that can be enforced by County Court or Magistrates Court, even High Court, for this and many other reasons a consent order must be written by a qualified solicitor. Some couples will write their own agreement and even have it witnessed thinking it will be fine, actually it isn't worth the paper its written on, it is not binding or enforceable in anyway. These documents are often very technical and include many factors most people not legally qualified would not think of, even if they did wording is very important, as with any legal document.
4. What does a consent order include?
A consent order covers the financial aspects of the divorce.
It generally describes what is to happen to each of the main assets (property, savings, shares, businesses and pensions). It sometimes also covers child and spousal maintenance (where applicable).
So typically a consent order might stipulate what will happen to the house: either that it will be sold and the proceeds divided, or that it will be transferred into one persons name - possibly in return for a cash lump sum. Pension sharing agreements are a common clause in a Consent Order (where applicable).
The consent order is not an agreement on child residency and contact - those items are covered in other documents.
5. Can we change the order once a judge agrees it?
Once an order is written and you have both talked to a lawyer to make sure you fully understand what you are agreeing to and signed it the solicitor who wrote the order will send it to a Judge along with some basic financial information. The Judge then looks at what you both have and how you intend to split it and stamps the order with a rubber court stamp, this is known as sealing the order. The order then becomes binding. The order is enforceable from the date of the decree absolute.
Once the order is sealed it can only be changed by mutual consent of the now ex husband and wife or if another judge decides it can be changed after an application is made to court, one person cannot change the terms of the order, it must be by mutual consent.
For the vast majority of people consent orders are final.
In some rare circumstances an order can be cancelled, known as setting aside the order. There are few circumstances when this can happen:
- If one person was not honest when giving disclosure and that dishonesty would have meant the other spouse would not have agreed the order a judge can set aside the order, cancelling it in other words, it seldom happens though, for example if a person found out at a later date their ex husband or wife had hidden £100,000 they could apply to court and ask a judge if this non-disclosure is enough to overturn the agreement that was made.
- If a person is forced to sign the order for whatever reason and this comes to light later on again a judge may decide to set aside the order, again this is a rare event, in fact it can only be set aside if the judge thinks the order was actually unfair, and that would have been a consideration when the judge approved the original order.
- If an event takes place that was unforeseen shortly after the order was sealed a judge can consider if the order should stand, these are known as Barder events, they must be completely unforeseen and life changing.
6. What if only one person wants the consent order?
Consent orders exist throughout law not just family law, a single truth applies to all, they must be a consensual agreement made by two people, if the husband and wife don`t fully agree you can`t have a consent order.
If you are unable to agree on a consent order then your main options are to continue to negotiate (directly or via solicitors) or to go to mediation or to go to court.
If your ex is completely unwilling to even talk about an agreement then your only real option is to apply to court and ask a judge to help you both reach agreement, or if all else fails have a judge make a final ruling on what should happen.
7. Will a judge accept our consent order?
When a husband and wife make an agreement a Judge is required to make sure the agreement is fair and lawful and also how the agreement was formed.
Is it fair? The judge will consider the Consent Order that you have put forward alongside the financial disclosure documents that you each need to provide. The judge will consider whether the agreement that you have put forward is compatible with what the law says is fair (see What the Law says?). The judge will allow you a fairly wide margin of discretion - and will not expect you to have come to the exact same answer that he would. So you have some considerable freedom to define your own agreement - but if the agreement is too far from the norm and could be seen as very unfair to one party then the judge may be concerned.
If a Judge has questions they can write asking for more information, some will even list a short hearing in court so the judge can meet you both and talk about any concerns s/he has, they tend to last between 10-30 minutes, some longer, what the judge wants to know is do you both fully understand what you are agreeing too, and if one person is under pressure to agree. The legal term for this is duress. If the judge is happy with your responses either on paper or in court the judge will seal the order.
A judge can refuse an order though, although it seldom happens, by far the most common reason is that the consent order was not written (drafted) by a solicitor, these always will be rejected often with little or no explanation.
From time to time a judge will ask specific questions. Suppose a couple were married for 20 years, the wife has no pension and the husband has a valuable pension. The judge may question why the pension is not to be shared after a long married. There could be a very good reason which the judge is unaware of, and which may simply need to be explained to the judge.
When two people have both talked with lawyers about the agreement so they understand the ramifications of signing judges don`t tend to be so concerned. They are not there to stand in the way of reasonable consensual agreements, but they do have a duty of care to the vulnerable.
8. We don't want to divorce can we still have a consent order?
In some circumstances a married couple who are separating wish to agree a financial settlement - but do not want to get divorced yet. They may want to wait for 2 years separation before getting divorced or they may want to have a judicial separation for religious reasons.
A consent order can only be done as part of the divorce process - you cannot send a consent order to court until you have a decree nisi.
If you are not getting divorced - you cannot get a consent order.
So for those people who want a financial agreement without divorce - the alternative is to get a separation agreement.
A separation agreement is not as legally binding or enforceable as a consent order. It is certainly better than doing nothing. As long as the couple remain in agreement during their two year separation then they should be able to turn the separation agreement into a consent order at a later date when they get divorced.
9. What is the difference between a consent order and a separation agreement?
A consent order is a legally binding and enforceable court sealed agreement, once the judge stamps the order it is very difficult to change in the future unless by mutual consent, even then it may not be possible.
A separation agreement is not enforceable nor is it binding although if the matter becomes contested in the future and court is the only way to settle the financial dispute it does provide the Judge with the agreement made at the time, if the separation agreement was written by a solicitor as it should be and both parties sought legal advice before signing the agreement it can be a very helpful tool to aid the Judge in how to direct proceedings or make a final decision as to how assets should be divided.
If you don`t intend to divorce it is advisable to have a separation agreement written. What you should not do is do nothing or write an informal agreement.
10. What do court need to know before a judge will accept a consent order?
When a Judge considers an agreement written as a consent order the Judge needs to be sure of a few things, this is because a Judge has a duty of care to make sure the order is legal, fair and workable, the Judge tends to consider:
- Did a solicitor write the order?
- Technically is it lawful?
- Did both parties seek legal advice before signing the agreement?
- Did both parties provide full financial disclosure?
- Is the agreement fair to both parties and children if they have any?
- Was either person under pressure to sign the agreement?
In the vast majority of cases, so long as a solicitor wrote the consent order, and you both took legal advice before signing the consent order, then the Judge will accept and seal the consent order.
Along with the consent order the solicitor also completes a short form called a statement of information for consent, form D81. Each party needs to complete this form and exchange them with the other side. It is a short form providing details of each party's income, savings, properties, pensions and debts.
The D81 provides the judge with information so s/he can decide if the agreement is fair and falls within the discretion of family law.
11. We have a consent order but now my husband/wife won't sign the order, what can I do?
It depends on the circumstances.
- Refusal to sign: A draft consent order is often sent back and forth between the parties until everyone is happy with it. It may be that you get very close to an agreement, but then one party starts to backtrack on things that they had previously agreed. If one party pulls out during this back and forth negotiation then you don't have an agreement. If they decide that they will not sign the order then you have to explore other avenues to reach agreement such as mediation or making an application to court.
- Backtracking after signing: If you reached an agreement that was: written as a consent order by a solicitor, you both sought legal advice, and you both signed the order - but then for no good reason one person decides they no longer agree a solicitor can make an application to a Judge to have the order sealed in the agreed terms. The reason this can happen is to prevent people from withdrawing without reason or for a petty reason that has nothing to do with the financial agreement. Generally though, before a judge can seal an order, full consent of both parties must be given.
- Backtracking after agreeing in court: Some consent orders are agreed in court, often at a Financial Dispute Resolution hearing. Sometimes people wake up the next day and feel that they have agreed to something unfair - perhaps due to being under pressure. Agreeing a "heads of terms agreement" in court is not a light matter - think it through very carefully - you will find it very difficult to get out of that agreement once you have agreed on the day in front of the judge. Only agree if you feel it is the right decision for you given all the circumstances (e.g. it may be perfectly valid to agree to less than you really wanted because you don't want the costs and hassle of going on to a final hearing).
12. What does a consent order look like?
Because consent order's are unique and based on the circumstances of the couple, and because they contain confidential information, it is quite difficult to find examples of Consent Orders online. However we believe that it is useful for couples going through divorce and the related financial settlement process to have some idea of what a Consent Order looks like. So here are two examples:
|A very simple Consent Order.||A typical Consent Order|
|This might be applicable to a couple who had a short childless marriage, are financially independent and don't want anything from each other.||This is for a couple divorcing after a long marriage. They have one child, different salaries, a pension and a mortgage.|