10 Common Questions About Consent Orders
What is a consent order on divorce?
A consent order is a legally binding document that sets out what has been agreed between divorcing parties in respect of their finances, including property, pensions, investments, businesses and maintenance. The document is drawn up by solicitors, agreed, signed and submitted to the court along with a form called a D81 (which sets out a summary of each party’s financial position). The judge will consider these documents to ensure that the agreement that has been reached is fair and if so, will approve the order, which makes it legally binding.
Who gets consent orders?
We prepare consent orders in almost every case where couples are divorcing, whether the parties have reached an agreement directly, in mediation, with the assistance of solicitors and with or without court proceedings.
How long does a consent order take?
You cannot file a consent order with the court until you have the ‘conditional order’ in your divorce. This is the second stage of the divorce, and it usually takes around 6 months for this to be granted because once you have filed for divorce, there is a 20-week waiting period before you can apply for a conditional order.
In terms of preparation, a consent order can be drafted quickly (and we have been known to turn them around in less than a day). How long it takes to be agreed depends on the other party and their lawyers. In more straightforward cases, there can be a few weeks of back and forth but in more complex cases, it can be a lengthier process.
Therefore, from the start of the divorce process it is likely to take 7 – 9 months to get your approved consent order. However, if you already have your conditional order in the divorce, and have agreed in respect of the finances, it could take as little as 1 – 2 months to get this drafted, submitted and approved by a judge.
How long does it take for a consent order to be approved?
Once everything has been agreed and signed, one party’s solicitor will submit the order to the court via the online HMCTS portal where it will be referred to a judge. As a general rule of thumb it takes 2 – 4 weeks for the order to be considered (and usually approved). However, if your order lands in the inbox of a judge who has a quiet day then you could see it approved within 24 hours.
How often are consent orders rejected?
The court has a broad discretion which enables parties to agree to a range of different but equally acceptable outcomes. If matters go to trial, we always advise clients that ten different judges could come up with ten different outcomes in their case, which would all be deemed legally correct. However, the court does not rubber stamp consent orders and will carefully consider what has been agreed as against the financial disclosure in the D81 form. If there is a clear imbalance in the agreement reached and it is unclear how one party will meet their needs, the court may reject the order and ask the parties for further explanation or to revisit the agreement. This is more likely if one party has not had legal advice. Whilst it is fairly rare for consent orders to be rejected if parties have taken legal advice and acted upon this, it does happen on the odd occasion.
How can I avoid my consent order being rejected?
- Ensure both parties have legal advice and that this is recorded within the consent order
- Speak to a solicitor, who will be able to advise you about the likelihood of the order being rejected and what can be done to mitigate against this
- Set out detailed explanation in the D81 about why the agreement has been reached
How much do consent orders cost?
The preparation of a consent order, the accompanying documents such as the D81 and any pension sharing documents will usually cost in the region of £1,500 – £3,000 plus VAT. There is also a court fee of £58 for the party that files the consent order.
How long do consent orders last?
Consent orders are final. If you have a ‘clean break’ consent order in respect of all claims for both income and capital then this marks the end of your financial ties. However, if, for example, spousal maintenance is payable by one party, then the order will not provide an income clean break until the end of the maintenance term. Whilst maintenance is payable, either party can apply back to the court to have this varied. This application can only be made if there has been a significant change of circumstances (i.e. the receiving party cannot meet their needs due to illness or job loss and so needs more maintenance or the paying party can no longer meet the order due a reduction in income). Capital clean breaks are included in almost every case which prevents the parties from mounting further claims for property, pensions or lump sums in the future. In rare cases, for example, where there has been severe non-disclosure, the court may sanction capital claims being left open for a certain period. If capital or income claims are left open the court will always be conscious to ensure that there is a defined end point when no more claims can be brought.
Are court orders public record?
A consent order will not be entered into the public record, however, if you are unable to settle your financial claims and attend a final hearing, the court may publish the decision that it makes. There is an increased push towards transparency in the family court and in some circumstances, parties will be named within the judgments which is worth bearing in mind whilst litigating.
Do I really need a consent order?
If you have limited assets, you may feel that this process is unnecessary. However, to ensure that financial ties are severed you must have a consent order in place. The famous case of Wyatt v Vince made it all the way to the Supreme Court in 2015 on this very issue. The parties had divorced over 20 years previously, they never resolved their finances and both were effectively penniless at the time. Fast forward 20 years, the husband was a green energy millionaire, and his ex-wife had the ability to make a financial claim against him. Mr Vince would likely advise that you are better safe than sorry!