Consent Order

Consent Orders

A matrimonial consent order is an order of the court in terms which the parties have agreed in compliance with UK divorce law and asked the court to give legal affect. An order by consent can be applied for under the Family Law Act 1996 in divorce, judicial separation  or dissolution of a civil partnership proceedings when financial issues are agreed between the parties and will often incorporate a clean break. It is essential that where agreement has been reached on property, maintenance and the division of the matrimonial assets for it to be given legal effect by asking the court to make a consent order in the agreed terms. If this is not done the financial ties, property interests and obligations of the marriage will continue notwithstanding the marriage having been dissolved. This could result in your former spouse making financial claims upon you long after you were divorced and on your estate after you die. The court will usually make a consent order in matrimonial proceedings without hearing evidence or argument from the patties but it is important to note that it is not a rubber stamping exercise. Before making a financial consent order the court must be satisfied that:
  • It has jurisdiction to make the order (e.g. after decree nisi has been pronounced);
  • That it has the power to make the order (as in S22-24MCA)
  • That the order is fair and reasonable and complies with the S25MCA criteria.
The court will not order something simply because it has been agreed. It must be a fair and proper settlement and in accordance with the statutory guidelines and restrictions within the Matrimonial Causes Act 1973. The same matters must be considered as when making a contested order. The consequence of this is that both parties must give full disclosure of all their assets and liabilities before a consent order can be made. However this can be expensive and time consuming and could lead to bad feelings which the parties very properly wish to avoid. They have a good idea of what is in the family ‘pot’ and see no need to go through the formal disclosure process. There can be little point often in spending money on valuing assets where there is no dispute. For these reasons the court will only require limited financial information before making the consent order. S33(1)MCA therefore prescribes:
“….on an application for a consent order for financial provision the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application”
The prescribed information which must be provided on Form D81 is set out in Rule 2.61 of the Family Proceedings Rules and includes information on:
  • The length of the marriage, age of the parties and any children, and whether either party intends to remarry or cohabit;
  • A summary of the value of capital assets and income of the parties;
  • The proposed accommodation arrangements.
If the consent order involves a transfer of a property it must be confirmed that the mortgage lender has agreed to the transfer. To obtain a consent order the draft order must be prepared and two copies signed by the spouses sent to the court with notice of application and a completed statement of information. Providing that the draft order is comprehensive and complies with the requirements of the Matrimonial Causes Act, it will be made without the need for the parties to attend court, but if the judge requires any further information or has concerns as to whether the proposed settlement is fair he may require the parties to attend before him. Usually the consent order will not have effect until decree absolute is pronounced. Legal Zone have a guide available with loads of examples of consent orders and full details of the procedure to apply. Alternatively our lawyers can prepare the order for you and guide you through the process.

FREQUENTLY ASKED QUESTIONS

Everything was agreed when we separated and we entered into a separation agreement so am I right thinking that now we are divorcing there is nothing more we need to do?

 No you are not right. The separation agreement may be what you agreed but it does not have legal effect. To be legally binding the terms of your separation agreement must be incorporated into an order of the court. As you are now divorcing you will need to draft an order which can attach the separation agreement and submit it to the court with an application for an order by consent.

We have agreed everything between us so must the court make a consent order?

 The court is not obliged to make an order simply because the terms have been agreed. In divorce proceedings a court is required to consider all the factors in section 25 of the Matrimonial Causes Act and ensure that a fair and proper settlement is made following full disclosure of all matrimonial assets

I want a consent order but my spouse won’t agree one. Can I make them?

 A consent order is by its nature what has been agreed by both spouses. If your husband does not agree with the terms you will not unfortunately be able to obtain an order by consent and you will have two ask the court to decide and make an appropriate order.

What can be ordered in a consent order?

The court may make a consent order requiring payment of a lump sum by one spouse to the other, the sale or transfer of property, spousal (but not child) maintenance, and pension sharing. There are certain things they cannot order such as for a mortgage lender to release party from a mortgage which are often dealt with by one party giving undertakings to affect.

Do I have to go to court to get a consent order?

Usually attendance at court will not be required by either party providing the consent order appears fair and reasonable. Where there is uncertainty as to this however or where it is apparent that full disclosure has not been given a judge may well call the parties into court to further explain the position.

Is it possible to vary a consent order after it has been made?

It is only in very exceptional circumstances that a consent order will be overturned or varied. Such will usually be where there has not been proper disclosure by one party of all assets with the intention of misleading the other. A change of circumstances after making the order will not usually justify a variation

How much does a consent order cost?

Legal zone will prepare your consent order and help and advise for £200.