CONSENT ORDER DURING DIVORCE – WHY ITS BETTER TO HAVE ONE THAN NOT!
If you are going through divorce proceedings you almost certainly will come across the term ‘consent order’ or “statement of information for a Consent Order” at some point, but what exactly does it mean?
The term ‘consent order’ can refer to any type of court order agreed by the parties, for example an order setting out agreed contact in private children proceedings. However, a consent order is more usually utilised when referring to an order setting out a financial agreement in relation to property and assets upon divorce. A statement of information is a document that is required by the Court when considering the financial terms agreed by the parties and is accompanied with the Consent Order. It includes disclosure of both parties’ financial position which each of the parties will see to include income details, assets, liabilities, pension and any capital. In addition, the document will include the age of the parties and details of any dependent children and also details of any new relationships. The Court will want to consider whether the terms agreed are reasonable in the circumstances by looking at the statement of information and the parties’ financial position.
Why is an order needed? Quite simply, to ensure that the settlement is final and enforceable. If no Consent Order has been made then, unless either party have remarried either party can go to the court and make a financial claim against the other, sometimes years later after the divorce. In this scenario any assets accrued in the future or for instance a lottery win can be claimed by an ex-spouse if there is no Order in place. In addition, if an order is made and if one party does not keep to the terms of the settlement the other party will need to ask the court to take steps to enforce the settlement, but the court can only take enforcement action if the settlement has been incorporated into a court order, if there is no Court Order then the court has no power of enforcement.
How do you get a consent order? At Brearleys solicitors we have a specialise family law team who can provide advice and guidance on what has been agreed. It is important to note that the drafting of a consent order is a job for a solicitor. In any event, the court will want to be satisfied that both parties have taken legal advice on the terms agreed in the order before approving the order. If either party has not taken legal advice then the Court may list a hearing to discuss the terms agreed so the party not receiving legal advice understands the nature and effect of the Order. There may be instances where the Judge is not satisfied and the Court may refuse to approve the Order. This will mean that the financial settlement is not finalised, so that each party could still make a further claim against the other.
If the court does approve the order it will seal it and send copies to both parties, or their solicitors.
The last important point is to do with the timing of the order. Normally, it will be obtained before the divorce is finalised by the decree absolute (it can’t be made before the pronouncement of the decree nisi), or simultaneously with the decree absolute, as it is usually best not to finalise the divorce first. Note, however, that the order will not take effect until the decree absolute is pronounced.
It is extremely important to seek the advice of a solicitor even when you have reached a financial agreement with your spouse to protect yourself against any likely claims your ex-spouse may make against you in future years. You may think it is not important now as you may have little assets, but you may accrue property or assets in future years which your ex-spouse may lay a claim to if you have not enshrined your financial agreement in the form of a Consent Order which has been sealed by the Court.
Please contact Brearleys for advice on assistance on 012474 864002 for a free no obligation 30 minute consultation.
