Does your divorce need a consent order rather than a clean break?

Legal consent court order

A consent order is a legal document made between a couple which details exactly how your assets are to be divided after a divorce. It needs to be submitted and agreed by a judge and will then be legally enforceable in the future.

It will usually relate to major financial areas such as spousal maintenance, savings, property, ongoing income and pensions.

This can involve ongoing maintenance to one party, periodical payments or lump sum payments upon the sale of property or assets.

The financial agreement should be negotiated and agreed by both parties outside of court. It is important to come to an arrangement as evidence that both spouses consent to the order will be required and it will be extremely difficult to change it in the future without consent.

When Do You Need A Consent Order Over Just A Clean Break?

A clean break order is simpler and is designed to end the future financial commitment of couples.

A consent order is appropriate when there are marital assets to be split. It will list each asset and how it will be divided initially and ongoing.

There will also be a clean break clause which ends any future claims on any additional financial earnings which are made post divorce.

How Should You Approach Getting A Consent Order?

You can submit a consent order to a court once you have started the divorce process.

It can be preferable to go through the division of assets before the final legal documents such as the Final Divorce Order (previously known as decree absolute)or the Final Order (civil partnership). The reason for this is because it will be simpler and the divorce can change how you will be taxed on assets.

The judge may potentially view the agreement differently in terms of fairness if submitted afterwards.

Reach An Agreement Between Both Spouses

This is where a mediator can help a lot to advise the couple on talking through how to split assets. This can often be a fraught affair however it is important to bear in mind that not reaching an agreement will cost a lot more in legal fees and other costs.

A divorce mediator can also give advice on how a UK court would view an agreement in terms of how fair it is.

It Should Be A Fair Agreement

Your view on what is considered fair may not be what a UK court will consider fair.

For instance if one partner earns significantly more than the other then a fair order could be that the more affluent partner might give up the marital home and a percentage of their income and pension. Of course, child maintenance will play a major role in deciding the split.

Even if both parties agree that the split is fair, the judges still may not agree. This is where seeking the advice of a mediator or divorce solicitors can be so important.

You Will Need A Solicitor For Drafting The Agreement

Whilst you can file the order with the courts yourself, in the UK the consent order itself will need to drafted by a qualified solicitor.

Will We have To Go To Court?

In most cases neither party will have to attend court and the entire process can be done by post.

What Happens If A Consent Order Is Breached?

Once a financial consent order has been agreed and sealed by a court it effectively becomes a court order and will be enforced as such.

Judges are often quite harsh on any violations without a very good reason.

If you have identified a clear breach of the order it is considered prudent to send your ex-spouse a communication stating so.

If you have identified a clear breach of the order, it is considered prudent to inform your ex-spouse first and allow them to rectify the situation.  It will also show that you have taken reasonable and fair steps if you have to resort to litigation.

If your ex-spouse still refused to remedy the breach, you can apply to the court for enforcement of the consent order.  Seeking legal advice will help with how to fill in the breach forms.  You can represent yourself in court, although professional legal representation would be recommended.

If you are the successful applicant in enforcement proceedings, it is likely you can reclaim all of your legal costs from them.  This is in addition to any legal costs they may have personally incurred by appointing a solicitor to represent them.

The court will then demand that the person in breach fulfils their obligations under the consent order within a set period of time. If they fail to do this then they could be fined and/or imprisoned.

Can A Consent Order Be Changed Or Can It End?

Once the order has been sealed by the court it is considered “valid in perpetuity” so there will be no automatic ending date. An end date could be made part of the document if it is fair and agreed by both parties.

Potentially a financial consent order could be challenged even if it has been in place for years. You would need to seek legal advice from a solicitor on how to approach this.

Changes In Financial Circumstances

The financial settlement will sometimes not be enforced if there is a major change in the financial position of one of the ex-partners and it effects the fairness of the original agreement.

If the partner that pays more gets made redundant, loses their job or financial assets then the court could rule that they do not have to pay until they gain new employment. This can be written into the consent order.

A breach will not be enforced under these circumstances.

A judge would rule on what circumstances should change or overturn a financial consent agreement regardless of the agreement of both parties.

Changes In Living Or Marital Arrangements

If the partner who receives more money re-marries or co-habits with someone else for more than 6 months then an order can be challenged under those grounds.

The challenge will be on the grounds that the poorer partner no longer needs funds from their ex-partner to maintain their lifestyle.

The agreement can also end with the death of one partner.

Undue Influence

An important part of the procedure is that both parties agree to the consent order and will demonstrate their consent.

If you can prove that the other partner tried to unduly influence you then you could challenge the order.
Examples where this would be the case would include extortion, blackmail or threats against you or people you care about.

Fraud, Misrepresentation Or Non-Disclosure

The order can be challenged if some of the information given when it was being drafted is incorrect in what is considered to be a material level.

Such as if one party did not disclose sources of income or misrepresented the value of the income but this has to be a reasonable difference to be considered.