Consent order: forms for financial divorce settlement
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- Guidance notes included
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About this pack of forms
Whether you need to arrange finances for just yourselves, or whether you have children, a matrimonial home, joint pensions, joint insurance schemes or any other financial arrangement, the forms in this pack allow you to settle once and for all.
The consent order in this document provides for both a clean break and continuing obligations.
It is most unusual for a judge to provide for maintenance of your spouse unless he or she is taking time off work to care for children or on some other account. The judge will be looking for a deal which provides a fair division of capital and of income.
A clean break clause prevents any future money or assets that you earn or are given from being claimed by your ex.
What we have done to make it as easy as possible for you is to provide a comprehensive version so as to give you suitable words to express what you want. For example, your home is an area where land law, mortgage, joint tenancy and family law collide. We give you the words to use, so that you do not have to work them out for yourself.
Choosing exactly what to change and what to delete is not difficult. We have provided extensive notes in plain English. The layout of the template is what the Court will expect too.
These forms take into account the Family Procedure Rules 2010.
You may like to read more about the process for an application before using these documents.
- Consent order form
- Blank Form A and Form D81 for you to complete
- Pension sharing annex forms: (Form P1 and Form P2)
Frequently asked questions
What is a financial consent order?
A financial consent order is an official judgement by a court that states how property, pensions or other assets should be divided between a couple who are divorcing and whether one person must make ongoing payments to the other.
In an amicable split, couples can make a draft consent order, which is a legally binding financial agreement between themselves, and later ask a judge to rule that it is fair and acceptable.
Is a consent order necessary for divorce?
It is possible to divorce or dissolve a civil partnership without agreeing any division of assets or financial arrangements. However, if a consent order is not made, it is possible for an ex-partner to make a financial claim for a share of income or assets at a later date.
If the court makes a financial order you have peace of mind that you have a clean break without financial ties or future claims.
You can also make a draft agreement and not ask the court to approve it. If so, your draft can be legally binding, but as an agreement under hand, rather than as a court order.
When should you apply to the court to approve a consent order?
In divorce proceedings you file a draft consent order with the court after the Decree Nisi has been pronounced.
As such, it is sensible to starting drafting your consent order as early as possible once divorce proceedings have started to make sure that agreement over financial arrangements does not delay the divorce process.
It may be approved before you obtain a decree absolute. But until you obtain the decree absolute, it won't be binding.
Note that usually, it is not necessary for either party to attend the hearing of an application for a consent order.
What should be included in a consent order?
There are few rules about what you decide should go into your consent order. What you are doing is to provide a comprehensive deal between the two of you and going along to a judge to approve it.
Will the court always accept our consent order?
No. A judge has complete discretion as to whether to agree your consent order. They must be confident that it is fair and that both parties understood and agreed to it.
While fairness is subjective, Section 25 of the Matrimonial Causes Act 1973 guides the judge on what to consider.
if you happen to have prepared a pre-nuptial agreement or a separation agreement, you can refer to that in the draft order. Neither will be binding on the judge, but it is unusual today for a judge to ignore what you have already agreed.
Is child maintenance included in a consent order?
Children arrangements are usually dealt with on a separate occasion.
Child maintenance payments can be included in a consent order, but an order only makes the payment of the child maintenance binding for a period of 12 months. The reason to include your agreement in respect of them in a consent order is to be able to use the order as proof of income, useful when applying for a mortgage or renting a house.
After 12 months, the Child Maintenance Service (CMS) is responsible for calculating the amount due and enforcing payment.
If you cannot agree child maintenance payments between you, then you can ask the CMS to calculate what should be paid, which will then become binding, even if it is a different value to the amount agreed in the consent order.
Is a financial consent order legally binding?
Yes. A consent order is legally binding.
Because it is an order of the court, if your ex-spouse does not carry out what has been agreed in your consent order, then they are in contempt of court - a criminal offence.
Can consent orders be enforced?
Consent orders can be enforced because they are orders of court, but doing so can be stressful and time consuming.
There might be a better way of making sure your ex keeps to their side of the deal than hiring solicitors and going to court again.
Before you enforce an order, you should first give your ex the opportunity to put the situation right.
If that doesn't happen, you might next consider mediation, especially if the breach relates to non-payment of spousal maintenance. There may be a good reason why your ex cannot make those payments. If circumstances have changed, a court may change a consent order in your ex's favour.
What if we cannot agree on the split of finances?
If you can't agree between you on a draft order, you can apply to the court to make a financial order for you.
However, a family court is likely to consider the financial value of assets and not sentimental or practical value. That a valuable painting has been handed down the family tree for generations will not be considered, nor will the convenience of the family home being close to amenities.
So if you cannot agree, you might consider first using a family mediation service to reach agreement.
Does what we agree regarding finances depend on who was to blame for the divorce?
Generally, the grounds for divorce and who did what during the breakdown of the relationship makes no difference to the division of assets and spousal maintenance order.
What the court aims to be is fair to both parties without judging morality.
What is a statement of information for a consent order?
A statement of information is a declaration of the full current financial position of each person.
It is incorporated into Form D81, which is filed with the consent order.
The statements of information allow a judge to assess what is fair in the division of assets, child maintenance payments, spousal maintenance payments and pension sharing.
Do we have to disclose all of our financial information if we agree to keep what we own?
The role of the court is to make a judgement on your arrangement is fair to both sides.
When you sign the D81 form, which is submitted to the court, you declare that you have disclosed your assets, liabilities and income fully and frankly to your ex-spouse.
While there is no legal requirement to make a full financial disclosure to the court to get a consent order, it is recommended that you do so because without one, a judge is unlikely to be able to make a decision on whether your proposed arrangements are fair.
Your assets are likely to include: equity in property (most likely the value of your share of your home after the mortgage lender has been repaid), business assets (such as shares in a company), money in bank accounts and saving accounts, investments such as those held through ISAs and pensions, and high value assets such as cars, watches, artwork and furniture. Debts to you should also be included.
Even if you have agreed that you won't take any of the other's pension, you will need to provide a Cash Equivalent Transfer Value (abbreviated to CETV).
Few people are aware just how much their own pension is worth - let alone the pension of a spouse. So it is important that you set out the value of your pensions and your proposals to take the pension values into account. This is covered at length in the notes which come with this pack.
Your liabilities are likely to include debts such as overdrafts and credit card debts.
If you have income, whether from employment, rental property, benefits or maintenance payments, then you should disclose the sum of those.
However, if the judge feels that they cannot understand your financial position well enough to make an informed decision as to whether the financial agreement is fair and reasonable, they may do one of two things.
They may reject your order completely on the grounds that a decision cannot be made, in which case you would have to reapply for a new court hearing at a later date (incurring an additional court fee, other costs and delays).
Or they might make a different consent order to your draft.
Without full disclosure you also risk that your ex-partner later challenges the fairness of the order on the ground that he or she was not aware of your true position.
Is a solicitor needed to draw up a consent order?
You do not need to use a solicitor to make your consent order. The documents that Net Lawman sells in this pack are sufficient to draft your own.
However, a judge may feel more confident in approving your order if you have sought independent legal advice beforehand, which is likely to be given by a family law solicitor. This is more likely if your agreement reached seems to favour one of you over the other.
This document was written by a solicitor for Net Lawman. It complies with current English law.
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