What is a consent order? The legal jargon free guide

Person signing documents
Originally published on 28th September 2018 at 11:20 AM

A consent order is a legally binding document that sets out the financial arrangements you and your ex have come to. It details how you’re going to split any assets, debts, pension, and income you have once you’re divorced. It is legally binding which means it will protect you both if anyone tries to change their minds in future. It often has what is called a ‘clean break clause’ in it which protects the money or assets that you may earn or receive in the future (for example, pensions, inheritance, lottery wins or future earnings) from being claimed by your ex.

Most people are surprised to learn that a divorce doesn’t end the financial relationship with your ex. So, if you get divorced and don’t get a consent order your ex can still make financial claims against you in the future (even after many years have passed).

Here’s how consent orders work:

  • What information is needed to complete a consent order?

There are two parts to a consent order – 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)

The other document you will need to submit is the consent order itself. This is not normally a document you can draft yourself instead it should be properly drafted by a trained person as it will need to include certain legal clauses. 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.

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.

You will also need for 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.

  • 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. These are the sorts of things that the courts consider when making their decision: 

  • 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 withtheir age and mental and physical health, and their educational costs. 

  • The next big thing the court looks at is need: 

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. 

  • The law also considers 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.  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. Most people agree a marriage of less than 2 yearsis likely to lead to this kind of settlement. If you have children however, the needs of the children will always be prioritized 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.  

  • How long does it take?

This really depends on how organised you both are in gathering your financial information e.g. your pension CETV (which can take up t 12 weeks) and negotiating a settlement. Let’s say you’re completely agreed upon how you want to split things and have all the right information, you should allow six months at minimum for the consent order to be sealed by a judge.

  • Can you get a consent order without being divorced?

No. You will need to be a Decree Nisi stage of the divorce process before you can submit a consent order to the courts. It usually takes about 12 weeks to get to Nisi stage, so it is worth considering getting started on the divorce and using the time it takes the court to process your petition to collect your financial information and negotiate a settlement.

  • 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 need to be included.

amicable offers a fixed-price consent order writing service and help from divorce coaches 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. 

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If you have any questions, or would like some support, please book a free 15-minute call with one of our experts here.

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About the author

Having experienced her own protracted and expensive divorce, Emma has spent the past 5 years working as a Divorce Mentor. Emma works with divorcing couples to find a pragmatic approach, thereby minimising conflict and costs.

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