What you need to know about making a Financial Consent Order (Form A)

Case Study 1 –Euro Millions Winner

NP divorced from his ex-wife and both of them moved on in their new lives. Ten years later, NP bought a Euro millions ticket and won £54 million. Straight away, he married his partner; the couple made donations to several local charities – they even gave away their former house to their cleaner. NP and his ex-wife had a daughter – now 13 years old – and he was paying regular child maintenance. He offered £1 million in a trust fund for his daughter which his ex-wife refused. £2 million was also declined and his former wife made a court application for £8 million. They finally reached a settlement out-of-court for £2 million. NP also agreed to increase the child maintenance to £2,000 per month. Because NP and his ex-wife did not have a consent order at the time of their divorce, the door was open for his former wife to claim £8 million from his winnings, even so long after they had both moved on.

The clean-break consent order

The clean-break consent order makes the financial agreement you reach when you divorce legally binding. You both must stick to what you agreed; furthermore, it makes the agreement you have made irrevocable. This stops either of you changing your mind at some point in the future if either of your circumstances change dramatically. The clean-break order provides your peace of mind, acting as ongoing insurance against future claims on any assets you build up in your new life. And that counts for wealth you build up by your own hard work, not just lucky lotto wins…

Case Study 2 –Wind Farm Billionaire

Dale and Kathleen Vince divorced in 1992. They lived a hand-to-mouth existence in a caravan in a new-age travelling lifestyle. Twenty years later, Mr Vince had become more mainstream and built a green energy business empire which was hugely successful. His wealth was estimated at around £107 million. The Supreme Court, in a landmark case, ruled in favour of Kathleen.  The judgement was based on the legal principal of marriage being a life-long obligation. Despite their divorce having been finalised many years earlier, Kathleen could successfully claim against Dale. A lump sum was finally agreed of £300,000; Mr Dale also had to pay his ex-wife’s legal fees, adding another £325,000 to the cost.

How do I apply for a consent order?

The first thing to do is to agree with your ex what your financial arrangements will be. You then ask the court if it will accept your agreement. It is important to know that they do not have to agree – the court could decline your application. Court fees to apply for a consent order are currently £50 which you have to pay when you submit your application. You could, in theory, draft a consent order yourselves, but this is not recommended. This is a specialist area of law and you should ask an experienced family law solicitor to draw up the document for you. This way, there is much less chance of it being declined by the court and you will be sure that the consent order is worded properly and unambiguously so it covers what you both intend. You are only allowed to ask for the court’s approval to a consent order after the court has agreed that you may divorce, in other words, once you have your decree nisi. The consent order will then become effective when the decree absolute has been granted by the court and your divorce is finalised.​

Is a consent order automatic when I divorce?

No. Your divorce and a consent order are two completely different things. You have to apply separately for a consent order which you should do through your solicitor. If you do not have a solicitor, we would advise instructing one for the purposes of gaining a consent order. Although you can divorce without getting a consent order, we do not recommend this. A consent order means you can move on with your life without worrying about your ex-spouse making a claim against you, possibly many years in the future, if you have an unexpected financial windfall or there is a big change in your circumstances. Many people think the fixed fee their solicitor charges for a divorce includes a consent order. This is rarely the case though, so you should always check. The consent order needs to be applied for when you get the decree nisi of your divorce.

Do I need a consent order if we have no money?

We strongly recommend that you get one, even if you have no significant assets now. After all, you have made the difficult decision to divorce because you both recognise that you need to make a fresh start in your lives independent of each other. The only way to make sure that future claims against you by your ex will be dismissed in court is with a clean-break consent order. Otherwise, you are vulnerable to future claims against you by your ex-spouse, even if you think you have both moved on.

How do we agree a consent order?

You can either agree what goes into the consent order between the two of you, or through your divorce negotiations, family mediation, or by negotiations led by solicitors. If you cannot find a way to agree, you can ask for the court to decide for you. However, this can quickly get very expensive and you might not get the result you think is fair. Mediation can be really useful in keeping decision-making in your hands and facilitating agreements that work for the both of you.

If both of you agree, you can also ask for a review by an independent barrister, who will advise you what a court would be likely to do in your specific case.

My ex was the one to blame for the divorce, not me. Does that make a difference to how the finances are split?

Very rarely. The circumstances would have to be very extreme for this to make a difference – e.g. murder or extreme gambling addiction. The grounds for your divorce and where any blame lies make no difference to how the assets will be divided. They are considered completely separate issues. The one who applies for the divorce will not be treated more favourably, or the one who is “to blame” will not be punished, no matter how good or bad their behaviour was, either during the marriage or after it ended.

What if we can’t agree about the finances?

If you can’t come to an agreement, you can apply to the court for them to decide on the financial order that will be made for your case. This should be an absolute last resort though. It would be a very good idea to try family mediation first, or other ways to resolve disputes, such as negotiation. You could ask for a barrister review. This is where an independent barrister experienced in family law will write you a report setting out what the law says, how they think it applies in your particular case, and what the courts would be most likely to decide if the case went to court. It takes three hearings to make an order. Even before the big backlogs in court waiting times caused by the COVID-19 pandemic, the process would take nearly a full year on average, and the cost of solicitors or barristers to represent you at court would probably cost you over £10,000 each, and costs can rise quickly. It is always quicker, less expensive and much less stressful to reach agreement without going to court. You also stand a much better chance of ending up with an agreement you can both live with rather than one which is imposed by the court and neither party might be fully satisfied with.

Will the court grant our consent order automatically?

No. It is not just a “rubber stamp” exercise. The court will only grant your order if they agree with it. This will be an order that is legally binding on you, so the court needs to understand what the arrangements are and be satisfied that it’s fair. They will prefer you to have been legally advised about the order. The court is not likely to tell you how to change your order if they object to it. They will probably ask you questions about it or suggest that you discuss certain aspects of the order once again.

Do I need to list all my financial assets for a consent order?

You have to make what is known as a financial disclosure. You can make this financial disclosure either between yourselves, or through mediation, or you can use Form E. The Form E is the court’s form to make financial disclosure and must be signed by both of you. It is important to remember to be accurate and completely honest about your finances. If you hold anything back or are inaccurate about anything, any consent order which the court seals on the basis of the disclosure you have made could be ‘set aside’ – i.e. cancelled – at some time in the future. If you are not completely honest about your finances, you could also find yourself in contempt of court because this form is a solemn promise to the court. You could even be committing fraud if you are found to have been deliberately dishonest, and that would be a criminal offence. The court will see a statement supporting the consent order known as a Form D81 which is a high-level summary of your financial situation. This gives the total value of any properties, assets and private pensions you own, and liabilities, i.e. amounts you owe in loans, etc.

How much information do I have to give? 

The absolute minimum needed by the court when they are considering a consent order is the statement in support, the Form D81. Although strictly speaking you don’t need to fill out a detailed full financial disclosure, we recommend that you do. You both have to agree the totals, so if nothing else, completing a full list and agreeing it between you reduces the risk that you forget something. You need to think about all your savings, values of cars, caravans, etc, any money you may have lent to family or other people which needs to be paid back to you, and all money that either of you owe, either on mortgages, loans, credit cards, catalogues and similar. So although you only have to tell the court what the totals are and not necessarily how those totals are broken down, you both have to be satisfied that it covers everything.

Does a consent order include child maintenance?

A consent order can include child maintenance arrangements, but the child maintenance element of the consent order will only be legally binding for 12 months. The Child Maintenance Service (CMS) takes over enforcing child maintenance after this time. This includes calculating how much must be paid. One reason for many people including child maintenance in their consent order is so they can show it to prove their income to help get a rental agreement or mortgage. When the CMS takes over from the consent order, they will usually encourage you to agree a family-based arrangement. If you cannot reach agreement, you can ask the CMS to calculate how much should be paid. This then becomes the legally binding amount, even if the amount you agreed in the original consent order is different. The amount could go up or down through this route. You need to keep in mind that child maintenance family law is a completely different area to spousal maintenance. Both can involve one party making monthly payments to the other, but the law treats them very differently. This is a very complicated area. We always recommend you to take independent legal advice about this. Child maintenance can sometimes be combined with spousal maintenance into one overall maintenance payment.

If we agree spousal maintenance, can I still get a clean break?

Usually, you cannot get a clean break where ongoing spousal maintenance has been agreed. Ongoing agreements for spousal maintenance mean that either of you can ask for the amount to be increased or decreased if any circumstances change. One party to the agreement can also ask for the spousal maintenance due in the future to be paid now in a lump sum. This might be because the party who is paying spousal maintenance has come into a large amount of money they weren’t expecting – for example, an inheritance or a lottery win. Sometimes the spousal maintenance agreed might be paid upfront in a lump sum. In these situations, a clean break can be made. Some couples agree to only a nominal amount of spousal maintenance to be paid when they divorce. This would be for a trivial amount of, say, £1 each year (which will usually not actually be physically paid). This allows for either party to apply to have the amount increased if the family situation changes dramatically. This could be, for example, if a child needs extra support for some reason. If you have agreed nominal maintenance in this way, you cannot get a clean break consent order.

Can I have a consent order after our divorce?

Yes. You can apply for a consent order any time after your divorce. Your financial arrangements always should be agreed before your decree absolute, but you can still ask for a consent order even after the decree absolute has been issued and your divorce is finalised. One important thing to remember is that you can claim against your former spouse – or the other way around – any time after your divorce, unless a clean-break consent order is in place.

Can I enforce a consent order?

Yes. Consent orders are enforceable through the courts. In the event that either of you does not do what is included in the consent order, that person can be taken to court and the courts will ensure that the order is complied with. Before you consider taking your former spouse to court, you need to give them the chance to put things right. Family mediation is a very good option here, especially if ongoing spousal maintenance is the issue. The person who has to pay might have a very good reason for missing payments, if their income has stopped because of redundancy, for example, or their business fails. If you want to enforce an order, form D11 needs to be completed. If your enforcement action is successful, the one who owes money is usually ordered to pay court fees and your legal costs. We strongly recommend you to get independent legal advice prior to trying to enforce your consent order.

What is the cost of a consent order?

Court fees when you submit your consent order are £50 at the current time. Your order will usually need to be drafted by a specialist solicitor. Their fees really depend on how complex the order is, the time it takes to re-draft it and fine-tune the wording, and whether a split of pensions is involved. Expect to pay anything from £300 for a fairly straightforward one to £3,000+ where your situation is complex and needs a more experienced and senior family lawyer. If the court has questions about the order or need things clarifying, this can also affect the cost. You will probably find many solicitors offering to do your divorce for a fixed fee. This will rarely include a consent order in the price, so always specifically ask whether the quote includes the consent order.

When is the best time to apply for my consent order?

The earliest you can apply is when you have your decree nisi. You should send your application for a consent order to the court straight away when you get your decree nisi because the consent order process can take at least 6 months to complete. In practice, this means that you and your ex-spouse need to have agreed the terms of your order and finalised it. A solicitor needs to have drafted it in time for when your decree nisi is issued.

How quickly can I get a consent order?

Even before further delays caused by COVID-19, courts, were taking about 6 months to finally approve consent orders. Some may be quicker than this, although others could take longer. Everything depends on their workload. Nothing can be done to speed the process up, but if an agreed draft order has been drawn up, it is more likely that it would be binding on both of you even in the period before it was sealed by the court or your divorce decree has been made absolute.

What is a deed of separation?

Your financial agreement is only formally legally binding when the court has approved your consent order and you have received your decree absolute. You could use a memorandum of understanding agreed through mediation to demonstrate your agreed intentions as you are making your new arrangements for the future if you need to prove it to banks, building societies, etc, but in itself, this is not properly legally binding.

Sometimes, people ask their solicitor to draw up a deed of separation. This asks the court if they will approve your agreement in case any issues come up before the consent order can be sealed after your decree absolute.

This is another complicated area. Most people prefer not to put their whole lives on hold – possibly for 18 months or more until everything is made legally binding. It is usually worth paying some money for the peace of mind of having independent legal advice from a specialist solicitor. Your mediator can also explain the options open to you in some more detail to help you make up your mind.

Do I need a solicitor to get a consent order?

Independent legal advice about the contents of your consent order is always something to be seriously considered. Far from being an unnecessary expense, advice from an experienced family law solicitor is the only way to get comprehensive information about the current state of the law and how it applies in your particular circumstances. Your solicitor will also advise you personally about what is in your best interests – others (e.g. mediators) can only give you general information but are not qualified to tell you what you should do. Taking legal advice beforehand also demonstrates to the court that the contents have been properly explained to you and you fully know all aspects of the agreement you will both be legally bound to follow. The court is likely to be more comfortable approving the consent order in the knowledge that both parties have taken their own independent legal advice.

Additionally, the procedural and administrative requirements of the consent order itself is something that needs to be considered. Whilst you are able to complete a consent order independently, it is likely a judge will not approve it if it does not meet the requirements. 

In short, the reason we advice you seek a solicitor is two-fold:

1. You receive the advice necessary to ensure the agreement is lawful and within your best interests; and 
2. The consent order is drafted by a legal professional who is experienced in that drafting, which ensures that it will meet the legal requirements for judicial approval.

Can I have a consent order without a divorce?

No. You must be in the process of divorcing to get a consent order. Your decree nisi must have been granted before you can submit your consent order to court. You might want to think about a separation agreement instead if you will not be getting divorced for whatever reason.

The difference between a separation agreement and a consent order

A separation agreement asks the court if they will agree the financial arrangements you are making now so they can be used later on as and when you divorce.

The main difference is that because you are currently still married, the separation agreement contents could be disregarded by the court, or it might carry less weight from the legal perspective in the event that your circumstances change significantly between drafting the separation agreement and finalisation of your divorce. For example, one of you might receive an inheritance, come into a large amount of money, or even be made bankrupt. Or one of you could have a child who suddenly needs special extra care. Or one of you might find yourself permanently unable to work. These are all factors that could lead to a separation agreement being changed at some time in the future.

The court also needs to be confident that you signed your separation agreement in good faith and that you knew what the consequences would be of making the agreement. It helps persuade the court that you entered into the agreement seriously if you both took independent legal advice before signing it and that the separation deed that you signed and had witnessed has been drawn up by a properly-qualified solicitor.

We have no finances to share between us – why should we get a consent order?

Many people think that financial consent orders are only for people who are wealthy when they divorce and if we have no assets, if we don’t have ongoing payments between us, why bother? But who knows what might happen in the future? Without a clean-break consent order between you, if you have a financial stroke of luck in 5, 10, 20 years’ time – or even more – your ex-spouse could emerge and claim against you, even if you think everything to do with your old marriage is all behind you.

Agreeing a consent order

There are a few ways to do this. Always keep in mind that going to court should always be the very last option. It will take three hearings; even before backlogs caused by the COVID-19 pandemic, it took an average of 11.5 months to reach the final order, and you can expect barrister and solicitor costs of over £10,000 plus VAT each to represent you in court. We never recommend trying to represent yourself in court. These are complicated matters of law. You could find yourself losing more financially than even the high-sounding legal representation costs.

You also have to prove to the court that you have attempted mediation by having a MIAM (Mediation Information & Assessment Meeting) – unless you are covered by one of the recognised MIAM exemptions.

Making an agreement:

DIY

You can discuss and agree between yourselves how you want to deal with your finances. This can work where your finances are relatively straightforward, you both understand the financial situation in your marriage fully and you are able to talk constructively with each other. It can be the quickest and easiest way to finalise financial arrangements when you divorce. You should still both take independent legal advice.

We also recommend asking a solicitor to draw up the agreement you have reached rather than try to do it yourself. This will make sure the wording is legally correct and unambiguous.

Family Mediation

Ever since April 2014, the courts have required people to use – or at least consider – consider – family mediation as a way to resolve their issues before they will be allowed to apply through the courts for any financial order. This is because it has become widely recognised as a more amicable, more cost-effective and much quicker approach to resolving disputes. This is especially important when family issues are involved.

The family mediator meets you individually – and confidentially – at first. They will then ask you to make your financial disclosure, usually using the court’s Form E.

You will then have one or more mediation sessions during which you will aim to agree:

• That the disclosure is complete
• The assets of your marriage
• The fairest way to split these assets
• Whether any ongoing payments should be made between you
• How much any payments should be made, for how long, also if any factors would result in the payment changing
• The timescale for assets to be transferred and who will be responsible for paying the costs of transferring the assets?

We recommended legal advice to go alongside the mediation. You can also ask questions about the disclosure and, if necessary, ask for proof of any items – exactly the same as if you were going to court.

Divorce Negotiation

If you have more or less agreed the principles, or have an overall agreement but there are some areas where you need some help – maybe to decide what should happen with pension arrangements, for example – divorce negotiation could be appropriate for you.

The negotiator will work with both of you to make sure your agreement seems sensible and make sure you covered everything the court will need to see you have discussed. The negotiator will also check that the way you are dividing your assets between you is as cost-effective as possible.

This is a good solution when your divorce is amicable and you prefer not to each pay for your own solicitor. You work with just one divorce specialist to finalise the details of your agreement. This is not a suitable option if there are several financial arrangements you cannot agree on. In these cases, family mediation would be a more suitable option.

Use your own solicitors

You can use your own solicitors to discuss and negotiate the disclosure, agree how your assets should be divided and ongoing maintenance. If you fail to reach agreement, your solicitor should suggest mediation as a potential way to reach agreement. If you choose this route, we recommend you to approach Resolution accredited solicitors. They commit to attempt to reduce conflict during negotiations. You also have to be aware that your solicitor has an obligation to get the best possible outcome for you. Your spouse’s solicitor, of course, also has exactly the same duty to them. As a result, there is likely to be a very wide gap between what you both start out trying to achieve and positions can become firmly entrenched.

If you can’t agree using either the solicitors or mediation routes, you have one final option to resolve matters out of court. You can ask to have an independent barrister review.

Independent barrister review

To begin with, you will have a one-hour joint session, either with an accredited family mediator or a negotiator. Their job is to ensure that you have made full financial disclosure. They will then list all the issues that still remain unresolved. They will also check with you what, ideally, you would both want to happen and your likely financial needs moving forwards.

When you have agreed what the report says, the barrister will send a report back. This will cover what the law says, how it applies in your particular case and their opinion of what the likely outcome would be if you took it to court, and why the court would be likely to make that decision. This can be extremely beneficial to help you avoid the time, not to mention the high costs, of a court battle to resolve your issues. Although the barrister’s fee might seem high, it could prevent you spending many thousands of pounds more – especially when you have the probable answer right in front of you.

You can then either accept the whole barrister review or mediate or negotiate points around it.

Go to court

If you apply to the court for them to make the financial order themselves, it is an expensive gamble. The order will be made without your consent. You may not agree with it or like it, but the financial order will still be legally binding and you must both stick to it.

What is the cheapest way to get a consent order?

This is very difficult to answer because how much a consent order costs depends on so many different factors – how valuable your assets are, how easy they are to divide fairly, how complex the details of the order need to be, whether you need to divide up pensions or not. Your mediator will be able to give you a rough idea and suggest some local solicitors who are experienced in this area of law so you can get some exact quotes. The main thing that will help keep the costs low is that time spent in mediation is cheaper than time spent by your solicitor. So if you can come up with a solution in mediation that you can both agree is fair and present a clear agreement to the solicitor, they will usually have to spend less time drawing up the agreement to present to court.

There is also a small court fee of £25 per person for the consent order.

Summary

A consent order should always be considered when you are divorcing. The only way you can guarantee that you have clean break from your ex-spouse, or make the agreement you reach legally binding and able to be enforced in court if need be is with a consent order. Without one, you could find yourself faced with a claim against you at any time in the future, even decades after your divorce, for any inheritance, business success or financial windfalls at any point.

Always remember that a consent order does not automatically come along with your divorce – you must apply separately.

Want to known more about mediation?

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