A consent order is a financial order that can be issued by the court when a divorcing couple have reached financial agreement between themselves. The consent order makes the agreement legally binding. A consent order brings certainty to your divorce settlement: once a consent order has been finalised, neither of you will normally be able to make a new financial claim against the other
When to use a consent order
Negotiating an agreement is almost always preferable to arguing things out in court and asking a judge to decide. If necessary, you can get help from your lawyers or use mediation. But agreement cannot be forced. If your spouse is unreasonable, or simply uncommunicative, you will have to apply for a financial order.
If you and your spouse can reach agreement between yourselves, you should always have this made legally binding by getting a consent order. Even if you both agree to simply walk away without making any financial claim on each other, you should get a consent order.
Without a consent order, there is always a possibility that your former spouse will decide to make a claim later. This might happen if your financial circumstances improve: for example, if your business takes off or you get an unexpected inheritance. Sometimes a former spouse can be encouraged to make a claim by a new partner.
Without a consent order, there is no limit to how long after the divorce this can happen. Even if you and your partner draw up an agreement between yourselves, this does not have the same effect as a legally binding financial order from the court.
You can apply for a consent order at any stage after the decree nisi has been granted. It can be a good idea to get the consent order before the divorce is finalised with the decree absolute.
What a consent order covers
The consent order should include:
- your home - whether it will be sold and the proceeds divided or ownership transferred to one of you;
- how other assets such as savings, investments or business interests will be dealt with;
- what will happen to personal possessions such as furniture;
- how any pension schemes will be shared;
- child maintenance for any children;
- whether one of you will pay the other spousal maintenance, and for how long;
- any other expenses - for example, if one of you will continue to pay for life insurance or private healthcare;
- who will take responsibility for any outstanding debts;
- an agreement that neither of you can make a claim as a financial dependant when the other dies.
Getting a consent order: the process
The first and generally most difficult step is to negotiate agreement between yourselves. You then ask a lawyer to turn this agreement into an appropriately worded consent order.
You will both need to complete a notice of application for a financial order and a statement of information form summarising what capital and income each of you have. These are sent to the court together with the draft consent order and a £50 court fee.
The judge will check whether the terms of the agreement are fair and legal. The judge may want to ask a few questions - either in writing or at a hearing - if the agreement seems excessively one-sided. Questions are less likely if you have each taken legal advice.
Once the judge is satisfied, the consent order is 'sealed' and becomes legally binding.
At any stage during this process, you may want to take legal advice. A lawyer can help you understand what a fair settlement would be, help negotiate agreement, prepare the consent order and file the application with the court.
Changing a consent order
A consent order must be freely agreed between the two of you. You are each free to negotiate a change to the agreement at any stage before signing.
Once the consent order has been agreed by the judge and sealed, it is final. Unless you can negotiate changes with your ex spouse, you cannot usually change the agreement.
Exceptionally, you may be able to challenge an order if:
- your spouse didn't disclose their true financial position, for example hiding significant assets or a new highly-paid job offer;
- there was some kind of fraud or misrepresentation, for example if the valuation of an asset is very inaccurate;
- you signed the order under duress or lacked mental capacity (for example, because of a mental illness);
- an unexpected event occurs shortly after the consent order is sealed and completely undermines its terms, for example if your ex has a sudden, large windfall.
If you feel you have grounds for challenging an order you should take legal advice.