Digital advances are affecting all areas of our lives from ordering nearly any item or service online to video calling. Legal services are no different. The pandemic demonstrated that remote delivery of legal services is possible. Meetings that used to take place in person prior to the pandemic, became virtual. Clients today now expect to receive value for money, convenience, and faster delivery of services. Purchasing legal services such as a divorce online, or a Consent Order online is today’s norm.
What is a Consent Order?
A Consent Order is a legal document entered into by a couple to confirm a financial agreement they have reached arising from their divorce or dissolution. A Consent Order can include all the financial aspects of the agreement reached such as:
- The family home – whether it will be sold or transferred to one party, and how the proceeds will be divided;
- How other assets such as savings, investments or business interests will be divided;
- What will happen to personal possessions such as furniture;
- How any pension will be shared;
- Arrangements for maintenance payments, including child maintenance for any children;
- Any other expenses – for example, if one party will continue to pay for life insurance or private healthcare;
- How any outstanding debts will be dealt with;
- An agreement that neither party can make a claim as a financial dependent when the other dies.
It is important to remember that a Final Order in divorce or dissolution only brings a marriage or a civil partnership to an end, it does not deal with financial matters. To ensure financial matters are concluded, it is necessary to make a separate application for a financial order, whether by way of a Consent Order following the reaching of an agreement, or through a Court hearing with a Judge deciding on the outcome if agreement cannot be reached. Once a Consent Order is approved by a Judge the financial agreement becomes legally binding.
The importance of finalising financial matters cannot be underestimated. In the 2023 case of HAT v LAT, Mr Justice Peel concluded that the absence of a Consent Order, and a 29-year delay in bringing a claim for financial remedies was not by itself a jurisdictional or procedural bar to a wife making a financial claim against her former husband.
What is the difference between a Consent Order & Clean break Consent Order?
A Consent Order is a legal document entered into by a couple with their consent which formally records the details of a negotiated financial agreement reached between them, such as a property transfer or sale, the division of assets or the sharing of a pension.
A clean break Consent Order is the simplest type of Consent Order and includes a “clean break” element in the Order. It can be used where there are no assets in a relationship and the couple wish to finalise financial matters with no ongoing financial ties between them.
The clean break element legally cuts financial ties between a couple. Once a clean break order is made, neither party to the marriage/civil partnership will be able to make further financial claims against the other person. This means there can be no further claims for maintenance, lump sums, pension orders or for property. A clean break Consent Order is ideal for cases where there are no assets, property or debts, and the couple want certainty for the future by knowing all financial matters have been dealt with.
A clean break Consent Order provides a lifetime of protection and peace of mind for a small cost.
What is the difference between a Consent Order and an Order?
A Consent Order is an Order made at the request of both parties by mutual consent. In contrast an Order is when a Judge “orders” something to take place and this may take place without the consent of one of both parties. It is a decision that is imposed by the Judge, rather than agreed upon.
Can you break a Consent Order?
Once a Consent Order is approved by a Judge and sealed by the Court it becomes legally binding and a breach of a Consent Order is effectively a breach of the Judge’s Order and can be enforced.
Courts consider a breach or break of an Order a serious matter and there may be cost implications for the person breaking the Order.
If the Consent Order contains an undertaking which is broken or not complied with, this may put you in contempt of court and could result in imprisonment and/or a fine.
Can a Judge refuse to approve a Consent Order?
The duty of a Judge is the administration of justice. Accordingly, a Judge will not simply rubber stamp a Consent Order. A Judge’s task and role is to exercise their discretion under section 25 of the Matrimonial Causes Act 1973, and to consider whether the terms of the financial agreement represent a fair and proper financial provision for both parties to the marriage or civil partnership given the circumstances of the case.
Although a proposed Consent Order is considered by a Judge “on paper” in private, the process for considering whether the divorce financial settlement is fair is the same as if there was a full formal hearing to decide the finances upon divorce or dissolution. The reason for this is that once a Consent Order is approved it becomes legally binding, and unlike other types of Court order, a Consent Order cannot be changed, appealed, or set aside unless in exceptional circumstances.
Why would a Judge not approve a Consent Order?
Achieving fairness is always a Judge’s top priority when asked to approve a financial settlement that is incorporated into a Consent Order following divorce or dissolution.
If a Judge considers a proposed Consent Order to be fair, the Consent Order will be approved and sealed.
If upon considering a proposed Consent Order a Judge does not think the financial agreement is fair, the Judge has the following options:
- Ask questions, either in writing or at a hearing, to clarify certain issues if they believe the order is unfair.
- Amend the Order or make a new Order to tell you how to divide the assets.
- Refuse outright to approve the divorce Consent Order (this is rare).
These options provide the necessary system of checks and balances to ensure that parties are protected and not left with an unfair or inequitable Order that does not meet their needs.
If a proposed Consent Order is rejected by a Judge, the Judge will usually return the draft Consent Order with some questions that need to be answered, and clear reasons for the rejection. In many cases there will be an opportunity for the proposed Consent Order to be adjusted and re-submitted to the Judge for approval. The most common queries received from Judges are for the parties to explain how one or both parties will rehouse themselves on the proposed asset split, or how the parties’ needs will be met from the proposed divorce financial settlement.
How much does it cost to draft a Consent Order?
The cost of drafting a Consent Order varies between legal service providers. Solicitors usually charge by the hour and will charge according to the time spent drafting the Consent Order and will ask for a retainer payment on account.
Unlike most solicitors, we do not have retainers, 6-minute units, hourly rates, or deliver monthly bills. All our services are fixed cost and provided online by way of telephone calls or video consultations at a time that is convenient for you. That means – no taking time off work, no arranging childcare or travelling.
For our Consent Order online service we charge a fixed fee of £600 including VAT where we will prepare a Consent Order and supporting documents. Included in this fee is a 1-hour video or telephone conference to discuss details of the financial agreement reached between you. The meeting is entirely guided by your needs and is designed to answer any questions you may have. Following the conference, we will draft a Consent Order for your approval. If you require any further information click the button above to request a free callback.
Who pays for a consent order?
As a Consent Order contains a mutually agreed financial agreement it is usual for payment to be shared in whatever proportion you agree.
Can I do my own consent order?
Consent Orders are technical documents that are different in each case depending on the agreement reached and your personal situation. Accordingly, it is always better to get a divorce specialist to draft it. A Consent Order must be drafted in a specific form with all the necessary legal provisions to protect you and to prevent any future claims being made. Without expert knowledge it is very easy to draft an Order that may not provide all the legal protection you seek or have agreed. If an agreement is not legally binding, a Court cannot enforce it if there are any issues later.
What is an alternative to a Consent Order?
An alternative to a Consent Order is to enter into a Separation Agreement. A Separation Agreement is a written contract made between a couple in a marriage, civil partnership or in a cohabiting relationship. It defines how their joint assets and responsibilities will be divided between them in the event their relationship breaks down.
There is no legal requirement to enter into a Separation Agreement, but entering into one will provide a couple with reassurance and clarity on where they stand. It is possible to convert a Separation Agreement into a Consent Order if the couple subsequently end their marriage or civil partnership.
Do you need to complete a Form E for a Consent Order?
You do not need to complete or provide a Form E (financial statement) for a Consent Order, but you will need to provide a document called a Statement of Information for a Consent Order in relation to a financial remedy (D81 Form). The purpose of this form is to provide financial information regarding your income, assets and outgoings and must be completed and submitted to the Court along with the proposed Consent Order. The D81 form provides details of your current financial positions and your financial position when your financial agreement has been implemented. The Court uses this information to reach their decision on whether the proposed financial Consent Order is fair, even if it is a Clean break Consent Order.
A Court will not approve a Consent Order unless it is provided with a completed D81 form.
What documents are needed for a Consent Order?
In addition to the draft Consent Order and copies, the following must also be submitted to the Court:
- Both parties need to complete a D81 form. It is possible for this document to be completed as a joint form.
- One party needs to complete a Notice of an Application for a Financial Order (Form A).
- A court fee of £53 fee to the court.
Do you have to go to court to get a Consent Order approved?
It is not necessary to physically attend Court to file a Consent Order; it submitted by post in and considered by a Judge in private without any party having to attend. If approved, the sealed Consent Order is usually returned within 1-2 weeks.
How long does a Consent Order take?
From submission to the Court, it normally takes 4-5 weeks for the Consent Order to be returned, however this may be more or less depending on the complexity of the Consent Order.
When should I apply for a Consent Order?
You can only apply to the Court to approve a Consent Order once you have started the divorce/dissolution process and reached the Conditional Order stage of the proceedings.
Ideally, you should apply for the Consent Order to be approved before the Final Order of divorce/dissolution is pronounced as if you ask after this, there may be financial consequences, particularly for pensions.
The Consent Order will only take effect after you receive your Final Order.
What happens after a Consent Order is approved?
Once a Consent Order is approved by a Judge it becomes legally binding and each party must then comply with any terms in the Order in the time limits stipulated. These may include the transfer of a property, placing a house on the market for sale, payment of a lump sum or the implementation of a pension share.