A Consent Order is a legally binding document setting out the exact terms of an agreement reached between parties. This can deal with arrangements relating to finances and children issues. When parties legally separate or divorce it is necessary to agree how all the finances are to be distributed. Obviously this sometimes involves court proceedings by way of Ancillary relief proceedings (issuing a Form A), which will be dealt with in a different article. Many people attempt mediation in order to try and reach an agreement and this is supported and promoted by the Courts. Many people do not realise that the divorce proceedings and financial proceedings are in fact separate proceedings, although they do run alongside each other. The financial proceedings are started by one party issuing a Form A at court to obtain a financial order. The difference between an order and a consent order is that an Order is made by a Judge after a contested hearing and having considered all the financial evidence and cross examination of the parties in line with what the court believes is the suitable financial division. A consent order is an agreement that is reached between the parties and then approved and sealed by the court.
Both parties should disclose all their finances to include, income, savings, investments, pensions, loans and a breakdown of their income and expenditure. The courts request that this is done by completing a Form E. Documentary evidence of each disclosure is also required by the court. If the parties are attending mediation then full and frank disclosure should be given and both parties should be made aware they are under a legal duty not to mislead the court and all documents filed must contain a signed statement of truth.
After disclosure it can be possible that the parties reach an agreement as to the division and that can then be set out in a Consent order and filed at the court. The consent order, along with a completed and signed D81(statement of information) should be filed with the appropriate court fee ( currently £53) and this will be considered by a Judge. If everything is in order the Consent Order will be approved and sealed and this is then a legally binding Order that both parties must comply with. Parties can apply to the court for consideration of a consent order any time after the application for divorce or dissolution. Many apply after Decree Nisi has been granted but before Decree Absolute. Please note that should a party apply after Decree absolute then there may be issues or consequences, particularly in respect of pensions.
If you have attended mediation in order to reach this agreement the mediator will complete a memorandum of understanding setting out the terms agreed and these then need to be put into a Consent order and D81. It is important that the memorandum of understanding is detailed and truly reflects the agreement reached. A solicitor can then draft the Consent Order on your behalf or you can draft it yourself.
The Consent order, depending on the assets, income etc involved will set out for example if the matrimonial home is to be sold and what percentage of the equity each party shall receive; if there are to be maintenance payments for the children and or the spouse along with the terms and the duration of such payments; if there is to be a pension sharing order; the allocation of outstanding debts or loan agreements; any lump sum payments and depending on the agreement if there is to be a “clean break” which bars either party making a claim on the other person’s finances, in life or death. The consent Order should be drafted to ensure that there is no room for error or confusion and clearly set out the true agreement that has been reached.
In order for a solicitor to advise on the suitability of such an agreement both parties should have provided full and frank financial disclosure and this documentation will need to be exchanged and considered before advice is given.
A consent order is legally binding upon the parties and therefore enforcement proceedings can be brought should a party fail to comply with the Order.
At Family Law Paralegal Services, we are not able to provide advice in respect of any settlements or assist with negotiation but if you have reached an agreement using mediation and it is clear both parties are knowingly and happily entering into the agreement we can assist you in preparing the Consent order and D81 in order for you to file this at court. Please contact us for more information as we offer a fixed fee package of £500 (depending on complexities) to include a conference, considering the memorandum of understanding, drafting the consent order and D81 and sending to you for approval, signature and for you to file at court. Please contact us if you have any questions or you wish to discuss your matter further.