Getting married is a significant legal undertaking, yet getting divorced can feel even more stressful and significantly more complex. As a separating couple, there’s an almost overwhelming number of decisions to make, agreements to reach and changes to enact.
The division of shared assets is often one of the biggest hurdles to overcome, particularly if the relationship is no longer amicable. While financial issues are handled separately to the divorce itself, reaching a fair financial agreement as quickly as possible is key to closing the door on that chapter and moving forward into the next phase of life.
What is a Consent Order and when is it legally binding?
If a couple can’t come to an agreement between themselves about how assets such as property, investments, pensions and savings should be divided, the court will step in. However, it’s faster, cheaper and less stressful if the couple can jointly agree to a division of assets without asking the court to decide.
If a couple is able to come to a financial agreement between themselves, they can apply to the court for a Consent Order. This is a legal document issued by the family court to formally recognise the terms of the financial agreement. The Consent Order outlines how assets will be divided between both parties and is legally binding when it is issued.
The Order provides both parties with peace of mind that no future claims against them can be made, while also providing the certainty that comes from knowing the court can enforce the terms of the financial agreement is one party later fails to uphold their side of the agreement.
What are the essential components of a Consent Order in family law?
Consent Orders are built around three key sections. Collectively, these sections outline what each person is entitled to and any actions required – for example, if one person must sell or transfer an asset. It reflects the terms already agreed by the couple in their financial agreement, so shouldn’t contain any surprises.
The three essential components of a Consent Order are:
Recitals: This section outlines agreements made between the former spouses in coming to a financial agreement. This will usually include a statement that neither party will submit a claim against an asset that the other person owns independent of the marriage.
Undertakings: Undertakings are specific actions that each party has agreed they will take in respect of shared assets. For example, one person may agree to pay off a credit card and the other to pay off a joint loan.
Orders: Orders are instructions from the court which direct one person to do something. One example would be an order to sell an asset, or to transfer ownership to the other party.
Maintenance orders require one party to make a scheduled monthly payment to the other to assist with living costs, or order one party to pay a fixed amount towards the cost of raising a child or children shared between the couple.
A Property Adjustment Order is specific to the family home, and outlines what needs to happen as part of this process – options include a required sale or transfer of ownership. Another common order to feature in the wider Consent Order is a Clean Break Order. This stipulates that neither party can make a financial claim against the other in the future.
How do Consent Orders impact financial settlements in divorce cases?
As we noted earlier, the financial settlement is separate to the legal process of obtaining a divorce. You must obtain a conditional order (decree nisi) before you can ask the court to issue a Consent Order, but you can also request one after the final order (decree absolute) has been issued.
The Consent Order makes the financial settlement legally bindable and enforceable, meaning both parties are bound to adhere to the division of assets and any required spousal or child maintenance orders.
What happens if one party breaches the terms of a Consent Order?
Any breach of a Consent Order can trigger legal action. The party impacted by the breach can go to court and ask for the order to be enforced. The party in breach of the Order could face a fine or even imprisonment. Other options available to the court include an Attachment of Earnings Order or in more extreme cases, the forcible sale of an asset such as a property.
Can a Consent Order be modified or overturned, and under what circumstances?
Although it’s rare, a Consent Order can be modified or overturned. There are very limited circumstances which allow for this to happen. Examples include if there has been a miscarriage of justice or, if circumstances have changed dramatically.
If you’re currently going through a divorce, our experienced family solicitors can help you to reach a financial agreement and draft a consent order. Contact us to schedule a free consultation to discuss your circumstances in confidence.
