A matrimonial consent order is an order of the court in terms compliant with UK divorce law which the parties have agreed 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 on property, maintenance and the division of the matrimonial assets has been reached between spouses who are divorcing that their agreement is given legal effect and made binding 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 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 in Form D81.
Providing that the draft order is comprehensive, properly drawn, and complies with the requirements of the Matrimonial Causes Act, it will be made without the need for the parties to attend court. Should the judge require any further information or have concerns as to whether the proposed settlement is fair he may however require both 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 your draft consent order for you and guide you through the process of having the order made.