UK Divorce Law: What is a Consent Order?

A consent order is a legally binding court order that records a financial agreement reached between divorcing spouses in England and Wales. Although the couple agrees the terms between themselves, the order must still be approved by a judge before it takes effect. This article explains what a consent order is, how it is approved by the court, and why it is important when separating couples have reached a financial agreement and want to make it legally binding and reduce the risk of future financial claims.

Here we explore the Consent Order in the UK, the different types, effects, importance, requirements and the process of obtaining one.

Divorce can be a complex and emotionally charged process, often involving important decisions about the division of financial assets and responsibilities for children. One legal tool that plays a significant role in this process is a Consent Order. A Consent Order is a legally binding document that outlines the terms of an agreement reached by divorcing parties. It helps solidify the division of assets and responsibilities, offering clarity and protection to both parties involved.

Types Of Consent Order

There are primarily two types of Consent Order: children Consent Orders and financial Consent Orders.

Children Consent Orders address matters related to child arrangements, access, and child maintenance. They ensure that the best interests of the children are prioritised and that both parents are fully aware of their responsibilities.

On the other hand, financial Consent Orders pertain to the division of assets, property, debts and spousal maintenance. These orders help create a fair and equitable distribution of financial resources between the divorcing parties, enabling a smoother transition into their individual financial futures.

The Purpose

A key concept in divorce law is the “clean break.” A clean break refers to a divorce financial settlement that concludes all financial ties between the parties involved, allowing them to move forward independently without any ongoing financial obligations to each other. A Consent Order can facilitate a clean break by outlining the division of assets, ongoing financial commitments and other relevant financial matters.

Why Is A Consent Order Important?

The Order provides legal clarity and certainty. It ensures that both parties are fully aware of their rights and responsibilities, minimising the potential for future disputes. By obtaining a Consent Order, both parties can move on with their lives knowing that the terms of the divorce have been legally formalised and no futher financial claims can be made in relation to the divorce.

Requirements For A Consent Order

For a Consent Order to be legally binding, certain requirements must be met. These include:

Full Financial Disclosure

Both parties must provide complete and accurate financial information, ensuring that the terms of the Consent Order are based on a clear understanding of their financial situations. This requires the completion of Form E.

Independent Legal Advice

It’s essential for both parties to seek independent legal advice from a divorce solicitor before finalising a the Order. This ensures that they fully comprehend the legal implications of the agreement.

Fairness

The terms of the the Order should be fair and reasonable. The court will review the agreement to ensure that neither party is being taken advantage of.

How Do The Courts Decide On What Makes A Consent Order Fair?

The court considers several factors when evaluating the fairness of the Order, including the financial needs and resources of both parties, their earning capacities, the standard of living enjoyed during the marriage and the welfare of any children involved. The court’s primary concern is to achieve a fair outcome for both parties.

When Is A Consent Order Required?

A Consent Order is not mandatory for divorce proceedings, but it is highly recommended, especially when financial matters are involved. This applies just as much to an uncontested divorce as to a disputed one. If the parties can reach an agreement, obtaining an Order helps prevent future disputes and provides legal protection. There is no time limit for former couples to apply for financial settlements after divorce, meaning that many individuals are at risk of their former spouse lodging a financial claim against them, even decades after the divorce. This was brought to light in the case of Wyatt v Vince [2015]. In this case the couple divorced whilst both were poor and claiming benefits. They never obtained a Consent Order and when he became a millionaire by creating a successful eco energy business, his former wife successfully made a financial claim 27 years after they divorced.

Process Of Obtaining Consent Orders

The process of obtaining a Consent Order involves several steps:

Negotiation

Both parties work together (often with the help of family law solicitors or mediators) to reach an agreement on financial and custody matters. Our guide on how to divorce amicably sets out practical ways to keep that process cooperative.

Drafting the Order

Once an agreement is reached, a family law solicitor will draft the Order detailing the terms and conditions.

Approval By The Court

The drafted Consent Order is submitted to the court for approval. The court reviews the terms to ensure they are fair and legally sound.

Court Hearing

In some cases, a court hearing may be required if the judge has any questions or concerns about the terms of the Order.

Issuance Of The Order

Once approved, the court issues the Consent Order, making it legally binding.

Separation Agreements

If the parties are not ready to divorce, they may wish to consider a Separation Agreement. This is a document that outlines how they will manage their affairs during the separation period. While not legally binding, a separation agreement can provide a basis for a future Consent Order.

No Agreement

If an agreement cannot be reached, it might be necessary to seek mediation or legal advice. Mediation can help parties communicate and find common ground. If mediation fails, seeking legal advice is crucial to understand your rights and options under the law.

Need A Consent Order? Talk to Tyrer Roxburgh

The complexities of divorce require careful consideration of legal procedures and agreements. A Consent Order serves as a vital tool in ensuring that both parties are protected and their rights are upheld. By outlining the terms of the divorce, it brings clarity and finality to a challenging process, allowing individuals to move forward with their lives while maintaining their financial and parental responsibilities. Whether it’s a children consent order or a financial consent order, the goal remains the same: to create a fair and equitable resolution that benefits all parties involved.

For an overview of all financial orders available please visit Financial Orders in Divorce.

Frequently Asked Questions

What is a consent order?

A consent order is a legally binding court order that records an agreement reached between divorcing spouses. In financial cases, it usually confirms how assets, property, pensions, debts, maintenance and other financial matters will be dealt with. Although the couple agrees the terms, the order must still be approved by a judge. The court will consider whether the agreement appears fair and whether there has been proper financial disclosure.

How much does a consent order cost in the UK?

In England and Wales, there is a court fee for applying for a financial order by consent. Solicitors’ fees are separate and will depend on whether the order is straightforward, whether pensions or property are involved, and how much advice or negotiation is needed. A simple clean break consent order will usually cost less than an order involving a family home, pension sharing, business assets, maintenance or complex financial disclosure. It is sensible to obtain a clear fee estimate before the order is drafted.

How long does a consent order take in the UK?

There is no guaranteed timescale, but a straightforward consent order will often take several weeks from submission to approval. The timing depends on court workload, the complexity of the agreement and whether the judge raises any questions. A consent order cannot usually be approved before the conditional order stage of the divorce. Delays are more likely if the paperwork is incomplete, the financial disclosure is unclear, or the judge considers that the proposed settlement needs further explanation.

How often does a judge reject a consent order in the UK?

There is no fixed or officially published rejection rate for consent orders in England and Wales. Judges do not simply rubber stamp agreements and may reject an order, ask questions or require changes if the terms appear unfair, unclear or unsupported by the financial information provided. A judge may be concerned if one person is left in financial hardship, pension arrangements have not been properly addressed, children’s needs are not reflected, or the order has not been drafted correctly. Legal advice can reduce the risk of delay or rejection.

What happens after a consent order is sealed by a judge?

Once a consent order is approved and sealed by the court, it becomes a formal court order. The parties must then follow the terms of the order, such as making payments, transferring property, dealing with pensions or dismissing future financial claims where the order provides for this. Some parts of a financial consent order may only take effect after the final order in the divorce has been made. It is important to check the wording of the order carefully so that each party understands what must happen and when.

Can I draft my own consent order?

Yes, you can draft your own consent order, but it must be legally accurate, clear and capable of being enforced. The court can refuse to approve an order if it is poorly drafted, incomplete or does not appear fair. Drafting a consent order without legal advice can create problems later, especially if the wording fails to dismiss future claims or does not deal properly with property, pensions, debts or maintenance. A solicitor can help ensure the order reflects the agreement and protects both parties. Where a couple separated years ago and never formalised matters, our guide to a financial settlement after 5 years separation explains the process. If either of you is thinking of remarrying, read about the remarriage trap first.