What are consent orders?
A consent order is an agreement used by parties who wish to settle their matrimonial financial disputes amicably. By agreeing on a consent order it keeps the power to agree on what happens to the matrimonial assets with the parties.
The order will set out in detail the agreement between the parties as to how each asset will be dealt with and the mechanisms and timings for the order to be implemented. For example, on a consent order for the sale of the family home, the order would specify when the property would be sold, how the net proceeds of the sale will be split and who the solicitors dealing with any sale would be.
Once an agreement has been reached, it must be signed by both parties and their legal advisors. A consent order can only be drafted by a legally qualified person. Once agreed upon and signed, the consent order is submitted to the Court to review and seal if it is deemed by a Judge to be a fair settlement.
Court proceedings
The Judge will need to be provided with some financial disclosure to assist in their decision as to a fair settlement and this is done by completing a Form D81. This form provides the Court with a basic overview of each party’s financial circumstances at the time the order is submitted to the Court to reassure the Judge that one party is not taking advantage of the other.
It is important that full and frank financial disclosure is made at the time of entering into a consent order, as if new information comes to light after a consent order has been sealed by the Judge, the disadvantaged party can make an application to the Court to set aside the order based on the additional financial information under section 31 of the Matrimonial Causes Act 1973 or Schedule 5, Part 11 Civil Partnership Act 2004.
The Judge will take into account the factors set out in section 25 of the Matrimonial Causes Act 1973 or Civil Partnership Act 2004 and determine whether the agreement is fair in all of the circumstances. S.25(1) Matrimonial Causes Act 1973 states that the Court must have regard to all of the circumstances of the case, and provides that the first consideration must be to the welfare of a child of the family who has not attained the age of 18. The factors that the Court must take into consideration include:
- The income, earning capacity, property, and other financial resources that each of the parties has or is likely to have in the foreseeable future (including any increase in earning capacity that it would be reasonable to expect a party to the marriage to take steps to acquire);
- The financial needs, obligations, and responsibilities that each of the parties to the marriage has or is likely to have in the foreseeable future;
- The standard of living that the parties enjoyed prior to the breakdown of the marriage;
- The age of the parties and the duration of the marriage;
- Any physical or mental disability of either party to the marriage;
- The contributions that each of the parties has made or is likely in the future to make to the welfare of the family;
- The conduct of each of the parties (where it is conduct that it would be in the opinion of the Court be inequitable to disregard);
- In the case of proceedings for divorce or nullity of marriage, the value to each of the parties to the marriage of any benefit that party will lose the chance of acquiring (including benefits under a pension scheme).
If a Judge reviews the consent order and D81 information and is not satisfied with the information provided or does not believe that the s.25 factors have been considered property, then they may ask further questions and request reassurances of a party to the order or seek additional documentation to satisfy themselves that all information has been disclosed accurately.
It is important to note that a consent order cannot be submitted to the Court unless divorce proceedings have been commenced and a Decree Nisi has been granted. In a dissolution of a civil partnership, the consent order cannot be submitted until such time as the conditional order has been granted.
Where there are no financial matters to be dealt with within divorce, whether that be because the assets have been divided prior to divorce proceedings being commenced or that there are no matrimonial assets to be divided, a clean break consent order should still be considered by the parties to ensure that all financial ties are severed between them at the point that the divorce is finalised and a Decree Absolute is granted.
Comment
A consent order should always be considered by the parties when dealing with divorce/dissolution of civil partnership as having a sealed consent order in place will prevent further claims in life and upon the death of either party.
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