Financial Consent Order
- What is a consent order in divorce?
- What is a financial consent order made up of?
- Why do you need a consent order in divorce?
- What is the difference between a consent order and a financial order?
- How long does a financial consent order take?
- Can a consent order be changed?
- Can a financial consent order be overturned?
- How to apply for a financial consent order with the family court
- What happens if a consent order is breached?
- How important is legal advice before signing a consent order?
- Is a consent order the same as a clean break?
- Reasons you might not want a clean break order
- Q&A SECTION
A financial consent order is needed to formally record an agreement between a couple who are divorcing. Quite often a couple may reach an agreement on their assets and finances mutually and by consent without having the court to reach an agreement for them.
What is a consent order in divorce?
Consent orders in a divorce is an order by the court which concludes a financial settlement between a married couple. A consent order is made when both parties have reached a financial settlement and agree to a financial order by consent without the need for a court hearing.
Consent orders terminate all financial ties between the divorcing couple. Financial consent orders effectively mean that neither of the separating spouses will be able to make a future claim on finances or assets against the other spouse.
What is a financial consent order made up of?
A consent order is made up of three main sections. These are:
- Recitals – These show the agreements that have been reached between the separating couple.
- Undertakings – There are effectively the promises made to the court in relation to the financial agreement not being breached, and
- Orders – this lists the agreements ordered by the court. This consists of the financial assets and property to which the agreement between the couple relates to.
Why do you need a consent order in divorce?
A financial order by consent order is needed to make your financial agreement following a divorce binding and legal. Without obtaining a financial consent after divorce the agreement you have reached will not be legally binding. As a result, the court will not enforce your agreement if your agreement fails.
It is therefore advisable that when selling property, transferring property, making a pension sharing order or paying over money that a consent order is obtained to ensure the other party carries out what they have agreed. Furthermore, a consent order will stop either spouses from attempting to claim for more assets or money at a future time. This provides protection to both parties upon completion of the divorce.
What is the difference between a consent order and a financial order?
A consent order as mentioned earlier is an application to the court to finalise the agreement reached between the separating couple to ensure the agreement is deemed as permanent and legally binding. A financial order is the term the court uses to describe financial proceedings within a divorce. Applying for a financial order in divorce is seen as a separate set of proceedings to the divorce itself and is also known as ancillary relief due to this reason. A financial order is the term used when you are asking a judge to decide on your finances because you have been unable to reach an agreement with your partner. This varies from a consent order in which parties settle their finances amicably and request a consent order from the court to make the agreement legally binding.
How long does a financial consent order take?
The time taken to obtain a financial order by consent can vary depending on individual circumstances. If the financial order by consent is straight forward the court will normally take between 3 and 4 weeks to process the application. Again, this can be dependant on the court used and whether they are working on a backlog. If the judge views the agreement to be fair it is most likely to be approved without the court needing to speak to either spouse or requesting further information.
On the other hand, if the judge feels the financial consent after divorce agreement is not fair or there are further issues which need to be addressed then you may be required to provide further information. If after providing the further requested information the judge is still not satisfied then the matter could be listed for a hearing in which both parties will be required to attend.
If the separating spouses remain amicable and can reach an agreement then the court is more than likely to provide the financial consent order. Once you have reached an agreement it could be worthwhile to seek legal advice as you will know from the outset the prospects of the consent order being approved. Family law advisors can provide advice on financial consent orders and may be able to assist with ensuring the consent order is in line with the requirements of the family court.
Can a consent order be changed?
A financial consent after divorce is usually freely agreed between both of the separating spouses. You are able to request for a proposed draft consent order to be changed which has not yet been approved or sealed by the court. If you require changes to a draft consent order you can ask for this to be changed prior to you signing the consent order or issuing it to the family court.
Once the consent order has been agreed by the judge and sealed it is permanent, final and legally binding. If you wanted to change the consent order you will need to consider negotiating with your ex-partner. Unless you are able to negotiate or reach an agreement with your former partner on changing a consent order you cannot usually change the agreement.
Can a financial consent order be overturned?
It is important to note that consent orders and other financial settlement orders including clean break orders are designed to be final and permanent. The judges are wary of allowing any changes to be made to such orders once the orders have been made. Despite this in some special circumstances a consent order may be challenged.
To successfully challenge a financial consent after divorce, your decision to challenge or appeal the financial consent order must be based on one of the following grounds:
- Non disclosure of relevant facts. This includes both material financial non-disclosure or non-disclosure of marital or cohabitation intentions. This basis of challenging a financial consent order is usually where one partner fails to disclose to the other partner of a job offer which means an increase in pay or not informing the other partner of the true value of the assets. A partner may also be able to challenge the consent order under this ground where one partner fails to disclose their intention to marry which could significantly affect the order agreed.
- Fraud and misrepresentation. This may seem similar to the non-disclosure of relevant facts. Misrepresentation can be unintentional and usually includes circumstances such as where a value of an asset has been disclosed but either the valuation was incorrect, or a mistake has been made.
- Supervening events. This covers situations where following the consent order a significant event takes place which undermines the entire basis on which the original order was made. In order to use this ground, you must be able to show:
- New events took place since the original consent order was made which invalidates the basis upon which the order was made.
- The events are so significant that an appeal would be very likely to succeed
- The new events must take place within a year of the order being made
- The appeal must have been lodged promptly and
- The appeal must not prejudice an innocent third party who has acquired an asset involved in the proceedings.
- Undue influence. This involves an influence in which a person is induced to act otherwise than by their own free will or without adequate attention to the consequences.
As well as challenging the consent order on one of the above grounds you must also be aware that a delay in making an application to challenge or set aside the consent order can be quite costly. In order to successfully overturn a financial consent order, you must act promptly. This should be ideally as soon as you become aware of the facts. The general consensus is that any challenge to overturn a financial consent orders must be done inside one year.
The courts will also take into account the issue of proportionality when considering challenges to financial consent orders. You are unlikely to succeed in your appeal if there would be no material difference to the current circumstances. The benefit to you in appealing must not be small given that the courts will take into account the costs of further litigation.
How to apply for a financial consent order with the family court
In order to apply for a financial consent order with the family court, you must have first reached an agreement with your partner on how any assets and finances are to be divided. A consent order is filed with the court once your decree nisi has been pronounced in your divorce proceedings.
Separating couples often pursue a consent order at the same time or straight after initiating their divorce proceedings. This ensures there is no delay in obtaining the order from the court.
The application process for obtaining a consent order with the family court is relatively straightforward. When applying for a consent order you need to prepare a statement of information. This is also known as Form M (D81). A statement of information is one of the documents you need to send with your application to the court. The statement of information will detail the following information which will allow the court to decide whether the financial settlement is fair:
- Your personal information
- Duration of the marriage
- The approximate value of the assets and income of each spouse
- Details of the property that is to be transferred
- Details of intended future accommodation arrangements of the parties
- Whether either party has remarried or has an intention of entering into a long term relationship and
- Matters relating to children.
The next step to applying for a financial consent order is drafting the proposed consent order. This is the document which will set out the arrangement and the terms that are being sought. Although a consent order can be drafted by yourself, many people utilise the assistance of family specialists to ensure the consent order complies with the requirements of the court. At Kabir Family Law, our specialists can assist you with any enquiries you may have in relation to a consent order.
You must also complete an application form to have your consent order completed.
Once you have the above information and documents you should send these to the family court together with the court fee. Three copies of the proposed consent order will need to be sent in the application to the family court. One unsigned copy of the consent order, one signed by you and one signed by your former spouse.
It is important that you keep copies of all documents and also provide a copy to your former spouse. If you would like more advice or assistance on making an application for a consent order to the family court then contact our offices today to speak to one of our divorce specialists.
What happens if a consent order is breached?
As a consent order is a legally binding document, if one spouse fails to fulfil this order or carry out the obligations stated in the consent order this will be a breach of the order. In such a situation the other spouse can request the court to have the consent order enforced. If the court agrees that a breach has taken place then the partner responsible for the breach will be required to meet the terms of the consent order as well covering the sots involved in bringing the matter before the court.
On some occasions a breach of the consent order may take place due to unforeseen circumstances. This is usually when one spouse is unable to fulfil their responsibilities. This is quite often the case if one spouse has lost their job and are unable to continue with any payments such as maintenance which were included in the consent order. They may allow the partner to stop the payments until they find a new job and this change may be reflected in an order.
Where there is no valid reason for breaching a consent order then the party responsible for the breach is at risk of being in contempt of court. The court has the power to impose severe penalties such as a fine, imprisonment or both.
Where an order has been breached by non-payment of money such as maintenance or a lump sum the courts can enforce the order as a debt and recover this through enforcement powers such as utilising bailiffs to seize assets.
How important is legal advice before signing a consent order?
Although you may have reached an agreement with your former spouse on your finances and assets you should seek legal advice before signing a consent order. A divorce lawyer can help you understand what a fair settlement would be as well as help you in negotiating an agreement. If you have taken legal advice prior to submitting an application for a financial consent order the judge is less likely to ask any questions and is likely to approve the consent order.
Without obtaining legal advice you may think the consent order is favourable, but the terminology used may in fact be detrimental to you or may not be what you had initially agreed. Given that once a consent order has been approved and sealed it cannot be changed it is highly recommended to obtain legal advice before signing or filing a consent order with the family court.
Is a consent order the same as a clean break?
A clean break is a consent order that orders a clean break between the separating spouses. This means there are no ongoing commitments between the separating parties. This could include any maintenance or an order with regards to a property being sold. A Clean break is commonly used where divorcing partners have no assets to split. A clean break order is obtained to end potential future claims against each for future pensions, inheritance or any other finances which may be acquired.
In contrast a consent order is a legal document which defines how your financial assets and or child arrangements will be divided. People often get confused between a clean break and a consent order. The difference between both is that the consent order is an application to the court where as a clean break is where neither of the spouses can return to the court to have the order varied.
Reasons you might not want a clean break order
A clean break order may not be appropriate in every case. A common reason why one spouse may not want a clean break order is because they may want to receive maintenance from their former spouse in order to equalise their incomes or provide a period of security until any children grow up or until pension payments can be made.
In some situations, the circumstances of a family may be uncertain for a clean break order. This could be when a family business is likely to be floated, or planning permission is waited for a property which may significantly enhance the value of a property. In such circumstances a clean break order may not be ideal, and it may be necessary for certain claims to remain alive until the position becomes clear.
Another common reason why a clean break order may not be ideal is where one spouses income is likely to decrease significantly or they think their former spouses income or assets may increase significantly in the near future. In such situations it may not be in your best interests to have a clean break.
Whatever the reasons for not wanting a clean break are, you can still have a clean break at some point in the future. In some cases where a person can be certain of when a change will occur they can obtain a deferred clean break order. This is a binding order which provides for a clean break when certain conditions have been fulfilled.
Are financial consent orders legally binding?
A consent order once it has been signed by both spouses and approved and sealed by the family court is legally binding. This order can then be relied upon in court and can be enforceable in the event of a breach. If the order is later breached then it can have serious impacts on the spouse who is in breach.
Consult legal advice today
Our family lawyers in Fulham specialise in all aspect of divorce and financial settlement. If you are looking to reach an agreement on your assets and finances or want assistance in preparing or reviewing a consent order then contact us today on 0330 094 5880 to discuss your options or let us call you back.