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Consent Orders in Divorce

What is a consent order?

A consent order formalises an agreement between a divorcing couple, outlining the terms they have come to regarding their financial arrangements. Once approved by the court, it becomes legally binding and can be enforced in the same manner as other court orders.

A mutual agreement between the parties which has not been enshrined in a consent order approved by the court cannot be legally enforced. Therefore, even if you and your spouse are in agreement about your financial settlement, it is important to get a consent order from the court. Without one, your former spouse may make a claim against you in the future. In a consent order, you can ensure a clean break between you.  

Consent orders will typically set out how the parties assets should be divided between the parties, as well as provision for ongoing payments such as spousal maintenance and child maintenance. However, an order for child maintenance payments is only binding for 12 months, after which the Child Maintenance Service (CMS) will generally have jurisdiction.  

If you and your spouse are going through a divorce and have come to an agreement regarding your financial settlement, contact Vardags today for a free initial consultation with one of our specialist divorce solicitors.  

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How can i apply for a consent order?

Where parties have come to an agreement themselves within financial remedy proceedings, they may apply to the court for a consent order. 

To obtain a consent order, the parties must file a draft consent order as well as a statement of information (Form D81). Although parties may draft the consent order themselves, it is advisable to instruct a solicitor to do so to ensure that the terms accurately reflect the parties intentions and the agreement they have come to.

The statement of information should set out each partys financial position, and the parties must provide full and frank disclosure. This includes providing the details of all assets, income, investments, pensions, and debt. If either party fails to do so, the order may be set aside.

The parties may either complete a joint Form D81, which they must both sign, or they can file separately. However, where two separate forms have been completed, each party must sign the others form to confirm that they have read its contents. Depending on how straightforward the consent order is, the approval process may take between 4-10 weeks. 

Although the court encourages parties to come to an agreement between themselves, the parties agreement will be scrutinised before a consent order is made. The court does not merely act as a rubber stamp and the court will not approve an agreement it believes to be unfair. In particular, the court will want to make sure that both parties needs are fully met upon the implementation of the consent order. Furthermore, the court can ask the parties questions concerning the terms of the consent order and may request the parties to provide clarifications or to make amendments as appropriate.  

Getting a consent order Following a nuptial agreement 

Following the breakdown of a relationship, the parties may wish to rely on a previously agreed settlement set out in a nuptial agreement. A nuptial agreement is a contract between spouses, or those intending to marry or enter into a civil partnership, that sets out how their financial affairs should be handled should their relationship end.  

Agreements entered into prior to the marriage or civil partnership are called a pre-nuptial, or sometimes ante-nuptial, agreement (pre-nup). Those made after the marriage or civil partnership are called post-nuptial agreements (post-nup).  

Pre-nuptial and post-nuptial agreements are not absolutely binding in England and Wales. However, following Vardags victory in the landmark Supreme Court case of Radmacher v Granatino, they will be applied by the court unless considered unfair. There are various factors which will be considered by the court which may render a nuptial agreement unfair to enforce, including if either party: 

  • Was subject to undue influence or pressure 

  • Did not receive independent legal advice or was otherwise unaware of the full implications of the agreement 

  • Failed to provide full disclosure regarding their financial resources and/or material information 

  • Would be in predicament of real need  

However, where both parties are happy to proceed according to the terms of the nuptial agreement, the terms may be written into a consent order and submitted to the court for approval. 

Can you change a consent order?  

It is advisable that you receive independent legal advice before applying for a consent order, as once it has been made, you will generally require the other partys consent to vary the order. Without this, a consent order may only be varied or set aside in exceptional circumstances. 

 

The information on this website is intended as a guide and does not constitute legal advice. Vardags do not accept liability for any errors in the information on this website, nor any losses stemming from reliance upon the statements made herein. All articles and pages aim to reflect the legal position at time they were published, and may have been rendered obsolete by subsequent developments in the law. Should you require specialist advice, tailored to your situation, please see how Vardags can help you.

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