Unsurprisingly, a fair consent order is all about getting the balance right.
There are four key steps to take that may help you achieve this.
You need to have all the details about the value of your assets and bills, to be able to make important choices and informed decisions.
A summary of your finances also has to be sent to the court with the application for a consent order. This summary is in the court form known as a D81 statement of information for a consent order.
Weigh up all options – even those you don’t like.
Imagine a number of different scenarios. Thinking them through is an important part of testing the fairness of any proposal; including the ones you don’t want.
Take advice on the proposed terms of your consent order.
You are likely to receive a lot of advice from family, or a friend. But you should try to take some legal advice as well.
It can be expensive and you may feel as though you are encouraged to “fight for more”. But in spite of that, a decent divorce solicitor will be able to tell you whether there is anything you hadn’t considered or that may be unworkable in your proposed agreement and may lead to it being refused by the court.
It is better to find out before going to the expense of sending your application off to the court.
The role of the court:
In the end, the consent order will only be made if the judge thinks it is fair too.
So, I want to look at what the law says needs to be taken into account by a judge when he or she has to make that decision on what is a fair consent order.
Which law deals with financial consent orders on divorce?
The Matrimonial Causes Act 1973 is the law that gives the court the power to make financial orders on divorce.
What does the law say is fair?
The law doesn’t define what is fair because no two family situations are exactly the same.
Instead, the law sets out what a judge must take into account when coming to a decision as to whether a consent order is fair or not.
This list of “matters” to be taken into account is found in section 25 of the Matrimonial Causes Act 1973.
First Consideration – the welfare of the children
It may seem obvious, but you need to make sure that any agreement you and your spouse reach takes the needs of any children into account.
It is the “first consideration” for the court in deciding whether to approve your agreement – or in other words, in deciding what is a fair consent order.
Sometimes this can lead to an entirely different outcome than if there were no children. For example, a couple who have no children are quite likely to sever their financial ties as soon as they possibly can after agreeing to separate. This may mean selling their home and dividing the proceeds of sale between them.
A couple who have children together, or step- children who have lived with them, will need to think about where the children are going to live after the separation.
Often, but not always, it will lead to a rather different agreement. Sometimes the home is not sold for several years until the children are grown up. This is quite common at the moment as houses are expensive and so is the process of selling and moving to new homes.
If you find yourself in this position, you will almost always need help drawing up the consent order to set out the terms of the trust that will be needed whilst the house remains unsold.
You will also need to come to agreement on the practical issues of who is going to pay the mortgage and the bills as well as for any repairs. When the house is finally sold, how will you divide the proceeds, especially if this will be several years down the line.
Who earns what?
Earnings can have a big impact on whether the terms of a consent order are fair.
If two people earn more or less the same, it would be fair to assume that income will not affect how they divide any assets they may have.
But if one person earns a lot more (or a lot less) than the other this may need to be taken into account for several reasons.
For example, the person who earns a lot less can usually borrow a lot less by way of mortgage.
So, if they end up with the same amount of capital (from the sale of the family home perhaps) one may be able to buy another property whilst the other might not.
Disputes can arise when one person believes that the other could earn more if he/she tried. Sometimes that isn’t always achievable because a person has fewer or less well paid skills than the other or because that person works part time to fit around the needs of the children.
Financial needs, obligations and responsibilities
This part of the law can be widely interpreted. It can mean needing to pay large credit card bills, or nursery fees or pay a mortgage.
Trying to see each other’s point of view is as good a starting point as any for coming to an agreement.
Remember that your needs and obligations can go down as well as up.
Be aware that judges have pretty much seen it all and heard every argument many times over. He/she may well have his/her own view on what is generally reasonable to take into account.
Standard of living
A typical example of how standard of living is taken into account may be in deciding whether it is reasonable to expect someone to move to another area or into far smaller or cheaper accommodation after a divorce.
In cases where there is a little more money to go around it is likely to help decide a level of maintenance – perhaps to include funding holidays abroad, sending children to private school and so on.
As a very general guide you would look back over the standard of living you had together to help you weigh up what is reasonable to be able to pay for in the future.
The less money you both have after a separation, the less relevant this may be.
Age and duration of marriage
How is age important?
Well, if one of you is about to retire and the other has several working years left, this can make a big difference to securing a mortgage – or paying one.
But if you are both under 30 and have no children, this may not be relevant at all in deciding what is a fair consent order.
Duration of the marriage has been in the news again recently.
In the case of Mr and Mrs Sharp there was a dispute as to whether the assets of the marriage (which were substantial) should be divided equally even though the marriage had been short and there were no children.
The Court of Appeal decided that they need not be in a very small number of cases where usually the marriage is short and there are no children and where the couple both have incomes and have, to an extent, kept their money separate.
The judgement in the case of Mr and Mrs Sharp sets out the most important cases in recent years where the impact of a person’s financial contribution to the assets during or before/after the marriage has been considered in the division of the assets on divorce.
As a general rule, there is no discrimination between the role played by the person working part time to care more for the needs of the family (or bringing up the children full-time) and the person who earns the most.
Their contributions are treated as having overall equal benefit to the family. Whilst it is easy to put a value on a financial contribution, it is not so easy to put a financial value on help with homework, or doing the washing, or offering emotional support and encouragement.
However there are times when financial contributions do have to be taken into account to achieve fairness.
For example if family money has been gifted/loaned to or been inherited by one spouse to help buy the home for example, it is sometimes only fair to allocate more of the equity to that spouse.
If one of you has owned property or had savings before the marriage, again this may result in an unequal division of the assets to achieve fairness.
This is behaviour and generally does not include the behaviour which has led to the breakdown in the marriage, for example adultery. It may include serious gambling, lying about assets and so on.
Usually if the situation includes allegations of conduct, it will not be one where you are working towards a consent order and you will need to seek independent legal advice.
Benefits you will lose the chance of acquiring
This used to mainly cover lost pension before pension sharing laws were introduced.
It could also apply to the proceeds of a type of share save scheme or any other assets that cannot be accessed yet and may not have a current value, but will be valuable in the future.
If there is something which you will lose entitlement to in your own right as a a result of a divorce it may be something you should take into account when discussing the terms of your agreement.
What is a fair consent order?
There is no one size fits all. You need to work through all of the above and anything else that may be especially relevant to your circumstances.
Try to look at every possible outcome, from every angle – whether you prefer it another way or not.
Within reason, the more help and advice you have the better informed you will be and the more likely you will form a balanced view yourself.
If you can, take advice from more than one legal professional, whether that is a mediator, solicitor or barrister. See how their views and approach compare to each other.
Be aware that friends and family who may have been through separation and divorce themselves, may be essential emotional support at tough times though not always the best people to advise you objectively.