Consent order factsheet

What is a consent order?

A consent order is just a court order made with the agreement of the parties involved. 

In divorce proceedings, or proceedings to dissolve a civil partnership, a consent order is usually a financial order made by agreement. Financial orders deal with what happens to your house, savings, shares, car etc during your divorce/civil partnership dissolution.

The terms of a consent order may be very similar to a separation agreement.

However, the difference is that a consent order can be sent in to the Court, where the District Judge is asked to approve it.

This approval can be requested at any time after the Decree Nisi has been pronounced.

Once it is signed and approved by the District Judge it is legally binding on both of you.

Is a consent order like a separation agreement?

The terms of a consent order may be very similar to a separation agreement.

However, the difference is that a consent order can be sent in to the Court, where the District Judge is asked to approve it.

This approval can be requested at any time after the Decree Nisi has been pronounced.

Once it is signed and approved by the District Judge it is legally binding on both of you.

Separation agreements are intended to be legally binding as well; but as they are made outside of court proceedings, they aren’t agreed by a judge. 

Do I have to go to court?

If the District Judge has enough information to decide whether the terms of your agreement are fair, it can usually be done without you attending court.

There are occasions when a court attendance is required.

The District Judge will usually ask you for some more details and, providing the answers are satisfactory, he/she will go on to make the order as requested.

It may be more likely that you will be asked to attend court if one of you has not taken any advice and/or the order is complicated or does not seem particularly fair to one of you.

It is more likely that your consent order will be approved first time if it is on the face of it a fair agreeent and the judge has plenty of information on which to assess that.

You should be careful to explain any division of assets which is not equal and make sure that all important financial details are clearly stated.

What is a clean break?

A clean break is actually just a clause in a consent order which dismisses rights to make certain types of claims arising out of your marriage.

Just to make things more confusing there is more than one type of clean break.

 

Full clean break

A full clean break consent order dismisses (in other words, prevents future applications for)

  1. future maintenance claims; and
  2. future capital claims

 

Capital only clean break

A capital only clean break clause in a consent order, only dismisses future capital claims and is used where there will be ongoing spousal maintenance.

 

Clean break after death

The court has the power to make an order to prevent claims against the estate of a dead spouse. This is sometimes referred to as a clean break on death.

It can also be included in the order for just one of you or both of you.

Is a clean break order the same thing as a consent order?

A clean break is really only part of a consent order and is only included once you have agreed how to divide your property or assets (or have already divided them and simply want to safeguard against future claims.

What is a standard consent order?

It is a phrase used to describe a normal consent order which usually contains additional standard clauses to those just providing for a clean break between you.

For example a typical standard consent order will include details of what is to happen to a property. Is it to be sold? Who is to deal with the estate agents? How much will each party receive from the proceeds of sale?

These provisions need to be drafted according to your unique circumstances.

You may think you only need the clean break clauses if you had no joint assets at all during the marriage( or you have already divided them as part of a separation agreement).

But, in the majority of cases, you will still need to recite in the order how that has been done, so that the judge has sufficient information.

Insufficient information is the main reason consent order agreements are rejected the first time they are submitted.

This is a specialist area and that is why the judiciary, the court service and the government all recommend that you take legal advice from a specialist solicitor or barrister before submitting a consent order.

Are there standard forms to apply for a consent order?

No.

Unlike the D81 Statement of Information, consent orders are bespoke documents. This means they must be individually drafted according to your unique circumstances.

Consent orders are all based on a precedent devised by the court, that is similar to the one below, but nevertheless you cannot submit a template consent order to the court.

Is it ok not to use a solicitor for a consent order?

Choosing the sort of help you want is personal and you want to feel that you have the right balance of affordability and confidence in the ability of the service provider you choose.

And there is a widening choice now when it comes to service provider. Solicitors, barristers, online help….even a divorce hotel (yes, really).

Beware. Not all services have legal qualifications, professional indemnity insurance or an approved system of regulation.

There are businesses that look like solicitors because they call themselves “lawyers”. This can be confusing and it is important to know the difference. 

When it comes to court proceedings, only authorised solicitors and barristers are allowed to represent you.

It is against the law to mislead the public or to pretend to have qualifications that you don’t have. 

There are a growing number of divorce “entrepreneurs” whose only experience of the legal system seems to be their own divorce, who are now setting up (sometimes very slick looking) websites offering full legal services when unfortunately they themselves don’t seem to have any formal legal training or experience.

Inevitably, they will have to use a solicitor or barrister to provide services that are reserved such as advice or court representation. 

You should be careful to double check who is taking responsibilty if a mistake is made and what insurance is in place if anything goes wrong. It is usually only possible to claim against the person you have a direct contract with.