What is a consent order?
A consent order is the document that sets out the financial agreement made by parties involved in a divorce.
Once approved by the Court, it is legally binding and prevents either party from making a financial claim later on (subject to certain conditions).
You can prepare your own proposed consent order if you can work with your ex to agree what should happen. Once you have both agreed to it (signed it), it is unlikely that the Court would change it unless it could be proven that the agreement was made under duress, or if it doesn't consider obligations to third parties such as young children.
Why use a consent order?
There are a number of reasons to seek a consent order.
It prevents either party from making future claims, giving you certainty of your situation
Unless you have written agre, either party can dispute the arrangement you reached and claim your assets. Such claims are particularly common where divorce agreements have been reached informally (not documented and signed) and out of Court.
Disputes create financial uncertainty and emotional stress, opening 'old wounds'. A new life might be troubled by events that happened long ago.
A consent order gives both parties certainty over how assets are split, and allows each to move on in their new life.
It is a cost effective method of having financial divorce settlements recognised by law
Of course, you can have your financial arrangements agreed through the Court, but asking the Court to make the decisions can be expensive. The final outcome may not be what both parties want.
If both parties are in agreement with regard to how assets should be divided, it is much less expensive and stressful to create a draft or proposed consent order yourselves.
Your agreed proposed arrangements are likely to be upheld by a Court if one person broke them, unless that person could show that fraud took place, or that he or she was forced to sign the agreement.
What is included in a consent order?
A consent order covers the division of all the assets that a Court can divide. A proposed consent order should cover the same. These include:
The former matrimonial home
The home is usually the asset with the largest value, so is the most important to both parties. The home could also be important because one person might not be able to move house easily (for example, because children are at local schools).
Commonly, ex-spouses agree:
to sell it and divide the proceeds after having repaid any mortgage and any other home related debts
that one person should remain in the house (for example, the parent who cares for the children most of the time) and pay the other a rent
that one person should buy the other person's share of the home from them for the market value
that one person takes as settlement the home, while the other takes other assets (not always easy if the valuation of the home or the assets are difficult to obtain)
Other joint assets
Joint assets could include:
cars, white goods (TVs, washing machines etc) and other items bought together during the marriage.
personal property from before the marriage or as a result of an inheritance.
items owned before the marriage or inherited during the marriage. These are assumed to be brought into the marriage, and therefore could be divided.
Often items are kept by the original owner (the person who owned them before the relationship), but that person may have to make concessions elsewhere to account for the financial value of the items he or she values sentimentally.
It is usually sensible to agree on division of such items outside of Court unless they are of high financial value.
Pensions and life insurance policies
One or both parties may have a pension or a life insurance policy.
A pension or life policy could be divided at its current value, or in shares for future withdrawal (for which the date should be stated) or to offset the value against another asset (such as the home).
The value might be paid now (for example, a sum of money equal to half of the current valuation now, paid now) or in the future (for example, a sum of money equal to half of the current valuation now, paid when the pension can be taken).
Maintenance is usually the most contentious issue. One party always dislikes paying the other income after the split. Maintenance prevents a truly clean break.
A consent order can set out how much is paid, when and for how long. It can include break clauses, for example if the ex-spouse receiving payments remarries, or enters a long term relationship.
Child maintenance can be agreed by the parties, but can be changed by the Child Maintenance and Enforcement Commission (if an application is made by either).
We suggest that you do not include child maintenance payments within your proposed consent order.
Expenses can include medical insurance payments, hire purchase payments and school fees.
Sometimes one party will receive benefits from an employer. These are usually divided by the beneficiary paying a sum to his ex-spouse in return for the ex-spouse no longer receiving the benefit.
Debts are usually stated within a proposed consent order along with who will pay each. If one party agrees to pay joint debts alone then any assets that are used to offset these debts should be stated, as well as any agreement made to indemnify the other party.
Pets can be expensive to keep. An order may include who keeps a pet.
It is unlikely that one party will have to pay maintenance for the other to continue looking after pets.
Further information and documents
Net Lawman provides a proposed consent order template that you can edit yourself to come to your own arrangement before you seek to have it approved by the Court. It contains the options most people will want.
Please note that the information provided on this page:
- Does not provide a complete or authoritative statement of the law;
- Does not constitute legal advice by Net Lawman;
- Does not create a contractual relationship;
- Does not form part of any other advice, whether paid or free.
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