A consent order is an order of the court in terms which the parties have agreed and asked the court to give legal affect. It can be applied for on divorce or dissolution of a civil partnership when financial issues are agreed between the parties. It will often incorporate a clean break.
It is essential to give the agreement on financial matters you have reached with your former spouse legal effect by asking the court to make an order by consent in the terms agreed. If this is not done, the financial ties and obligations of your marriage will continue notwithstanding the marriage having been dissolved. This could result in your former spouse making financial claims upon you long after you were divorced and on your estate after you die.
The court will make a consent order in matrimonial proceedings without hearing evidence or argument from the patties but it is important to note that it is not a rubber stamping exercise.
Divorce Consent Orders
Before making a financial consent order in divorce proceedings, the court must be satisfied that:
- It has jurisdiction to make the order (e.g. after decree nisi has been pronounced);
- That it has the power to make the order (as in S22-24MCA);
- That the order is fair and reasonable and complies with the S25 MCA criteria.
The court will not just order something because it has been agreed. It must be a fair and proper settlement and in accordance with the statutory guidelines and requirements of the Matrimonial Causes Act 1973. The same matters must be considered as when deciding a contested order.
The consequence of this is that strictly both parties should give full disclosure of all their assets before a consent order is made. However, this can be expensive and time consuming and could lead to bad feelings which the parties wish to avoid. Both have a good idea of what is in the family ‘pot’ and see no need to go through the formal disclosure process. There can be little point in spending money on valuing assets where there is no dispute over their value.
For these reasons the court may only require limited financial information before making a consent order. S33(1)MCA prescribes:
‘….on an application for a consent order for financial provision the court may, unless it has reason to think that there are other circumstances into which it ought to inquire, make an order in the terms agreed on the basis only of the prescribed information furnished with the application.’
The prescribed information is set out in Rule 2.61 of the Family Proceedings Rules and includes information on:
- The length of the marriage, age of the parties and any children, and whether either party intends to remarry or cohabit;
- A summary of the value of capital assets and income of the parties;
- The proposed accommodation arrangements
If the consent order involves a transfer of a property, it must be confirmed that the mortgage lender has agreed to the transfer.
Drafting a Consent Order
To obtain a consent order, the draft order must be prepared and two signed copies sent to the court with an unsigned copy for signature by the judge when making of the order.
Providing that the draft order is comprehensive and complies with the requirements of the Matrimonial Causes Act, it will be made without the need for the parties to attend court, but if the judge requires any further information or has concerns as to whether the proposed settlement is fair he may well require them to attend before him.
Remember that a consent order will not have effect until decree absolute is pronounced.