A consent order is a legally binding document, that formalises the financial arrangements you and your ex have agreed. You don't need a solicitor to write up your consent order, but you do need someone who understands the legal process and has experience in drafting orders. This is where amicable can help.
A financial consent order details how you're going to sort out your money post-separation. This includes how you'll split any assets, debts, pensions, and income you may have once you're divorced or your civil partnership has been dissolved. It's legally binding, which means it will protect you both if anyone tries to change their minds in future.
You will find a 'clean break clause' in a consent order, this prevents any future money or assets that you may earn or receive (such as pensions, inheritance, lottery wins or earnings) from being claimed by your ex.
Most people are surprised to learn that a divorce or dissolution doesn't end the financial ties you have with your ex. So, if you get divorced or end your civil partnership and don't get a consent order, your ex can still make financial claims against you (and vice versa) in the future, even after many years have passed.
Here’s how consent orders work:
A step-by-step guide on applying for a consent order
Step One: What information is needed to complete a consent order?
There are two parts to a consent order:
Statement of Information for a consent order (D81)
First, you will need to complete a Statement of Information or D81 – this is a snapshot of your current financial position. You will need to give the court a summary of the value of:
- your assets (e.g. properties, vehicles, business assets and bank accounts)
- your debts (loans, credit cards etc),
- your pension (even if you have agreed to leave each other’s pensions you will need to provide a CETV – Cash Equivalent Transfer Value for each pension you hold)
- your income from all sources (including any maintenance, benefits or rental income you receive).
Financial Consent Order
The other document you will need to submit is the consent order itself. This isn’t normally a document you can draft yourself, instead it should be properly drafted by a legally trained person as it will need to include certain legal clauses. This is where amicable can help.
You and your ex will have to decide how you will split your finances in a fair way. You can get advice on how to do this in this blog or by speaking to an amicable Divorce Coach. Book a call with one of our experts here to talk through your personal situation.
The consent order sets out what you would like to happen to the assets you’ve listed in the D81. It may include what will happen to property, assets, debts, and pensions. Things like child and spousal maintenance and lump sums that’ll be transferred between you will also need to be recorded. It will also set out a timetable for when payments will be made, or assets transferred.
It’s always a good idea to include the rationale for how you’ve decided to split things so that the judge understands what you are seeking to achieve and can check that is fair and achievable from what is set out in the order. We call this document the joint statement.
You will also need to fill out a Form A (an administrative document that allows you to apply for the consent order) and if you are sharing a pension, then you will also need to complete a pension sharing annex or P1 form.
What is financial disclosure and why is it necessary?
Financial disclosure is the term used for providing the court with a snap shot of your current financial position. The court needs to know all of your individual and collective assets, debts, pensions and income in order to judge whether the agreement you have reached is fair. It also helps to show the court that when you reached the agreements for your financial separation, you have done so with a full set of information.
There are various forms for disclosing your finances and they usually differ based on which route you have chosen to go down:
All applications to the court must have a D81. When you sign a D81 you are signing to say you have disclosed your assets fully and frankly to your partner and vice versa. You do not need to attach any evidence of your financial information to this form.
The amicable Dashboard: If you are using the amicable service you can collect all your financial disclosure information in our easy to use divorce portal. You can agree with your ex what evidence you want to include and enter your information into our dashboard. Its super easy and only the relevant questions are presented so no wading though endless forms. Once your disclosure is collated it is translated into the D81 form at the press of a button.
This is the form most traditional solicitors and mediators use. It is a long 40 plus page form. Some solicitors have an electronic version of this form. If you are using the court route, this is the form you will need to complete and exchange with your ex before you have a hearing to discuss your financial settlement.
Step Two: Who decides whether our consent order is fair?
A family judge will review your documents and decide if the agreement is fair.
The law does not have a defined formula for dividing assets or what is considered fair. The starting point when sorting finances is a 50/50 split. But if one of you has a greater need, for example, you are housing the children or earn a lot less, then the split may differ. For example, a 70/30 split.
These are the sorts of things that the courts consider when making a decision:
- Your children: The court’s primary concern is the welfare of your children.
The court will want to ensure they have a stable roof over their head(s) as far as is possible. Some examples of what a judge takes into consideration when deciding whether your consent order is fair are: Where your children will live/who your children will live with, their age and mental and physical health, and their educational costs.
A judge may consider whether one of you has a greater need than the other and therefore should get more than half the assets. This could include whether one of you needs ongoing support, called spousal maintenance. This can mean a departure from an even, 50/50 split.
- Income and earning capacity.
For example, if one of you has stayed at home to raise children, your earning capacity may be reduced, and you may need a greater share of the assets to house yourself or live off, particularly if you cannot raise a mortgage. Or if one of you has lost their job the court may consider how likely it is that you will find another job at a similar salary level.
- Property and other assets that either person has now or may have in the foreseeable future.
The judge will consider whether you have split property and assets in a fair way. This includes assets that are held in sole names (and/or were purchased prior to the marriage) if needs dictate, they should be in the mix as well as those held jointly.
- Age and health .
Pensions become more important the nearer retirement age you are. Age and long-term health issues may affect your earning capacity and housing needs. A judge will consider whether you have made a fair provision for both of you in retirement and whether splitting pensions equally is fair if you are of different ages.
- Length of marriage / civil partnership.
In shorter marriages ‘fair’ is more likely to mean taking out what you put in… i.e. what you brought to the marriage or civil partnership. Most people agree a marriage of less than two years is likely to lead to this kind of settlement. If you have children however, the needs of the children will always be prioritised over the length of marriage.
- Contributions made.
The law considers financial contributions as equal to those of homemaking (time spent looking after the family). Marriage is a partnership of equals and the law seeks to distribute assets in a way that recognizes this. So, a smaller financial contribution doesn't necessarily mean less of the assets.
You can make any agreement you like between yourselves but if you want the court to seal a consent order and make it legally binding then a judge will have the final say on whether your agreement is fair in the eyes of the law. amicable's Divorce Coaches are specially trained to help you make a fair agreement.
Step Three: What's the timescale of a consent order
The rough timescale for a consent order depends on how organised you both are in gathering your financial information e.g. your pension CETV (which can take up to 12 weeks) and negotiating a settlement. You should allow at least six months for the consent order to be sealed by a judge, regardless of whether you’re completely agreed upon how you want to split things and have all the right information.
Step Four: How long is a consent order valid?
Once a consent order has been signed off and sealed by a judge, it is valid indefinitely. This means because it is legally binding it shouldn't be broken and can't be changed unless you apply to the court for an amendment. If you have a spousal maintenance order, this can be varied with a change of circumstance.
Can you get a consent order without being divorced or ending your civil partnership?
The short answer is no. You will have to apply for and receive your decree nisi certificate. It usually takes around 12 weeks to get to the decree nisi stage, and depends on how busy the courts are.
We recommend using the time it takes for the court to process your petition to collect your financial information and negotiate a settlement. That way, when your decree nisi has been processed, you’re ready to go with submitting your consent order. Click here for more information about the divorce / dissolution process..
Do I need a lawyer to do a consent order?
No, but you will need someone who understands the legal process and has experience in drafting orders as there are certain legal clauses that must be included.
This is where amicable come in, we offer a fixed-price consent order writing service and guidance from your personal divorce coach who can help you to negotiate a fair financial split.
For information on how we can help, book a free 15-minute advice call here.