Weekly Family Law Update March 17, 2023

What is a Financial Consent Order and why you should apply for one?

Most people going through divorce or civil partnership dissolution will have to sort out a financial settlement.

And the best way of course to do this is by agreement, whether achieved directly with the other party, by negotiation through solicitors, or by some other means, such as mediation or collaborative law.

But agreeing the settlement is not quite the end of the matter.

The settlement will need to be incorporated into a court order, commonly referred to as a ‘Consent Order’.

What is a Consent Order?

A Consent Order is, as the name suggests, a court order made with the consent of both parties.

But why is an order required if both parties agree?

There are three main reasons.

Firstly, the order will confirm in detail what has actually been agreed between the parties. Without an order setting out the agreed terms the parties may misunderstand what has been agreed, or may even seek to pull out of something that has been agreed.

Secondly, the order will ensure that the agreement is enforceable. A financial settlement will usually include terms that are to be implemented in the future, such as the payment of a lump sum.

But such terms are worthless if one party does not keep to them and the other cannot enforce them. A court order can obviously be enforced by the court, upon the application of one of the parties.

Finally, and most importantly, the order can ensure that a settlement is final. It will do this by specifically dismissing all further financial claims by either party against the other.

For this reason it is even advisable to obtain a Consent Order in a situation where each party is simply keeping what assets they have – the order will ensure that they don’t claim more down the line.

How do you get a Consent Order?

Obtaining a Consent Order should not normally require a court hearing. It involves the drafting of the order, and then sending it to the court along with some required details of each party’s circumstances and means, and the court fee.

The order can be made at any time after the conditional order of divorce, and will take effect when the divorce is finalised.

Drafting a Consent Order is a job for an expert family lawyer. It is a technical document, and obviously it must be ensured that it faithfully gives effect to the agreed settlement, and includes all of the necessary terms to ensure that the settlement is put into effect.

The order will be drafted by one party’s lawyer, and approved by the other party, or their lawyer.

As to the details of each party’s circumstances and means, these are contained in a specified statement of information form. The form includes details of the marriage, any children, and each party’s capital and income, including pensions (both currently and after implementation of the proposed order).

Again, the document is quite complicated and should ideally be completed with the assistance of a lawyer.

When the court receives the draft order it will be considered by a judge. It is important to note that the judge is not obliged to make the order, just because its terms are agreed by the parties.

The judge will want to ensure that the terms are broadly reasonable in the circumstances, and that is why the court will require the details contained in the statement of information form.

If the judge is not happy with the proposed settlement they may request further information or clarification from the parties. They may also require the parties to attend court to explain why the order should be made.

If the judge is still not satisfied that the order is reasonable, then they may simply refuse to make the order, although this is unusual.

Once the judge is happy with the proposed settlement and the terms of the draft, they will make it into a sealed court order, and send copies to both parties.