A consent order is a legally binding court order approved by a judge in divorce proceedings, filed after both parties have agreed their financial settlement. This is often without the need for either party having to attend at Court.
Consent orders set out how a couple intends to divide their assets such as property, pensions and savings on divorce. It can also include details about any spousal and/or child maintenance arrangements.
If a financial consent order is not obtained, then the agreement reached is not legally binding and therefore unenforceable. It will also be open to your spouse to make further claims in the future.
Here are our pointers on financial settlements and consent orders:
Make sure you have full disclosure
It is vital that you know the full financial picture before you negotiate and agree a financial settlement. You can’t reach an informed decision without all the relevant information about income, capital and pensions. How can you know that you’re getting a fair deal if you haven’t had full disclosure of your spouse’s circumstances?
Don’t assume 50/50 is fair
The starting point for division of assets in a long marriage case is that of equality, but there are reasons to move away from this in a lot of cases. The overriding objective of the court is to achieve a fair outcome – fairness doesn’t always translate to a 50/50 split. Whilst there is a starting point, cases do still need to be look at on their own merits and each case is different.
Just because you have agreed, don’t assume the judge will too
The court is not there to act as a rubber stamp. Rather, the judge who considers your consent order has a duty to scrutinise the agreement. Occasionally, the judge may raise queries on the paperwork filed. The judge will only grant the order if he or she is satisfied that it represents a fair outcome for the parties. The judge reaches his or her decision based on the information provided in the supplemental documentation filed with the consent order.
Make sure the order is properly drafted
We would recommend that you see a solicitor to make sure that the documents you need are properly drafted and contain all the relevant information. The court requires the financial consent order to be drafted in a specific format.
Both parties should receive independent legal advice as to the content of the consent order and supporting documentation. The consent order is a legal document which you will be bound by. It is important that both parties understand exactly what they are signing and agreeing to.
In Family proceedings the usual rule is that each party will pay their own solicitor’s costs. If you have agreed the terms of the settlement then you will be able to minimise your legal costs and use your solicitors time effectively to draft the necessary documents and be advised as to the terms of the order and how it reflects the agreement that you have reached. Your solicitor will be able to give you a cost estimate of the likely time it will take to draft the documents, deal with any revisions and advise you on the terms. This will depend upon the complexity of the matter.