Financial Consent Orders: Simply Explained
April 29, 2022
At AFG Law we have been helping people secure financial settlements on divorce for years. Our specialist family solicitors are members of Resolution and understand the importance of trying to reach an agreement in an amicable way whilst saving time, money and emotional stress.
If you have reached an agreement with your spouse or civil partner, whether through discussions, mediation or negotiation, our divorce solicitors can help turn it into a legally binding document so you have protection for the future.
What is a financial consent order?
A financial consent order is an order made by the court that turns any financial agreement that a separating couple has reached into a legally binding order for both parties.
It is a legal document that confirms how you’ve agreed you’re going to divide pensions, property, savings and investments. It can also include arrangements for maintenance payments, including child maintenance.
Do I need a financial consent order?
It is usually sensible to have an order formalising any agreement you may have reached to offer certainty and protection for the future. It allows you to have certainty that no further claims could be made and, if your ex spouse defaults on the order, you can take action to enforce the order.
Can I do my own financial consent order?
Yes, you can do your own financial consent order, but it is a complicated process with massive implications if it is not correct. Once a consent order has been made, it is very difficult to change the agreement set out.
Our specialist finance solicitors can add value by making sure the agreement reached would be considered fair by a judge prior to an application being made for a financial consent order. The draft order, application and supporting documents must all be completed correctly and if they are not, this can lead to delays.
Our solicitors can take the stress out of this situation by drafting the documents for you, negotiating with your spouse about any changes, responding to the Court if queries are raised or changes are requested by a Judge and assisting you with the enforcement of a consent order if there are difficulties with your other spouse complying.
I’ve reached an agreement at mediation. Can a solicitor just help with the financial consent order?
Yes, if you have reached an agreement through direct discussions with your spouse or during mediation, and a mediator has prepared a memorandum of understanding, our divorce solicitors can help turn the agreement into a legally binding financial consent order.
We can also provide advice on the appropriateness of the proposed agreement. Neither an agreement nor a memorandum of understanding is legally binding or enforceable, so it is important that you take this final step to ensure you are protected.
Can I divorce without getting a consent order?
You can divorce without a consent order, but it is not something that our experienced finance lawyers would recommend. It is possible to deal with a financial settlement after a divorce or dissolution has already been finalised, but you may lose the right to certain assets if you remarry.
What is a ‘clean break’?
A clean break provision within a financial consent order stops either of the divorcing couple from making a claim against the other in the future – it cuts the financial ties between spouses.
There may be some circumstances where it is not possible or appropriate to have a clean break between the divorcing couple; this might be in circumstances when one spouse is to receive ongoing payments.
Do we need a financial consent order if we have no assets or ongoing financial obligations?
It is still helpful to have a financial consent order even if it only deals with the fact that neither of the divorcing couple has any further financial claims against the other’s income and assets. This provides security for your future as you know no further financial claims can be made.
We would always advise clients to consider having a financial order. The case of Wyatt v Vince in 2015 attracted a lot of media attention as the Supreme Court confirmed the principle that, even though the parties divorced in 1992, no financial order had been made so a financial claim could still be made. The husband was penniless at the time of the divorce but was a multi-millionaire by the time the application was made.
Another example often given by family lawyers is that of winning the lottery, in 2010 Nigel Page won £56 million and a financial application was made by his former wife from whom he’d separated 10 years earlier.
A more common situation might be where there is an agreement that one spouse buys the other out of the house and takes over responsibility for the mortgage. The ability for the other spouse to make a claim does not end when the property is transferred and a further difficulty may arise if bankruptcy becomes an issue for the other spouse and the trustee looks to other assets to meet debts.
When is the best time to get a financial consent order?
You can ask the court to approve a financial consent order if you have started your divorce or dissolution and have got as far as the conditional order being granted.
It can take time to obtain financial disclosure, consider it carefully, enter into negotiations and then prepare the application and order when an agreement is reached. It is therefore best to start thinking about the financial arrangements around the same time as you start divorce or dissolution proceedings.
It is more straightforward and beneficial for you to divide money and property before applying for the final order bringing an end to the marriage or civil partnership. It is possible to divide money on property after the divorce or dissolution has finalised, but it may mean that what you were able to claim prior to the divorce concluding has changed and it may have tax implications.
Is a financial consent order the same as a financial order?
A financial consent order is a document which sets out the agreement and different orders that the parties have agreed should be put in place. There are other types of financial orders that can be agreed upon during a divorce.
The Family Court can look at agreements reached by divorcing couples where they both consent to what should happen as well as imposing decisions on divorcing couples who can’t reach agreement.
What does the court do when it approves a financial consent order?
The court does not just approve every order, the judge has a far bigger role than just “rubber stamping”. The judge will read the application, draft order, information about the parties’ financial positions and then consider, with reference to the s25 factors, whether the agreement is fair and reasonable to the parties and any children in all the circumstances.
Do I need to go to court to get a financial consent order approved by a Judge?
No, there isn’t usually a court hearing when getting a financial consent order. A Judge will read the information provided by the parties and if they think the agreement is fair, based upon the s25 factors, and prepared correctly, then they will approve the order.
It will become legally binding once the final order is made in your divorce/dissolution. If the judge does not think it is a reasonably fair agreement they can reject the order, raise questions and ask for the order to be changed.
How long does it take for a financial consent order to be approved?
On average, it can take up to a month for a financial consent order to be approved by the Family Court but it can be affected by court delays or whether any amendments are needed.
You can only apply for a financial consent order once your divorce or dissolution has reached the conditional order stage.
How much does it cost to obtain a financial consent order?
Every divorcing couples’ set of circumstances are difficult and therefore, you would need to discuss this with our specialist finance solicitors so you can get an idea of the fees that apply to your circumstances. You can call us on 01204 377600 to discuss costs involved.
The court fee is £53. If you are on a low income or state benefits, you may be able to get help with the court fee by completing a form EX160.
How can I change a financial consent order?
Once a financial consent order is approved by the Court and the final order has been made in your divorce or dissolution, it is very difficult to make any changes. You would have to try and see if your former spouse or civil partner would agree to changes.
There are a few circumstances when you may be able to challenge a financial consent order, for example:
- If you become aware that your former spouse was dishonest when they told you and the Court about their financial circumstances;
- If the value of a particular asset was miscalculated;
- If you were under emotional distress when you signed the order or did not have capacity due to a mental illness;
- If something happens shortly after the financial consent order is made that would have changed the terms of your agreement.
This is an area where you would need quick, expert advice as financial consent orders are generally considered to be final.
Financial Consent Orders with AFG Law
It is far easier and much less hassle for you to have a solicitor involved in your entire divorce process – we can take the stress away from you dealing with financial consent orders and ensure that the divorce agreements and settlements are fair.