Matrimonial Consent Orders

Orders made by the Court in terms agreed by both parties in a divorce.

Consent Orders

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.

Consent Order Example (template)

 

Before District Judge

Sitting at the (name) County Court

On the   day   of   2018

Upon hearing the Petitioner and the Respondent:

AND UPON the Petitioner and the Respondent agreeing that the provisions herein be accepted in full and final settlement of all claims against each other for income capital and other property adjustment including for the avoidance of doubt all claims pursuant to the Matrimonial Causes Act 1973, the Married Women’s Property Act 1882 and the Inheritance (Provision for Family and Dependants) Act 1975.

AND UPON the parties agreeing that the contents and other items in the former matrimonial home at ( ) remain the absolute property of the Petitioner

AND UPON the Petitioner undertaking to the court to use her reasonable endeavours to obtain the release of the Respondent from his covenants under the Legal Charge in favour of the ( ) building society and dated ( ) secured over the former matrimonial home and to indemnify the Respondent from and against any liability howsoever arising under the mortgage:

BY CONSENT IT IS ORDERED THAT

  1. From the date of this Order the Respondent do pay or cause to be paid to the Petitioner periodical payments for herself at the rate of £1.00 per annum until the youngest child of the family reaches the age of 17 or completes full time secondary education whichever shall be later.
  2. As from the date hereof the Respondent do pay or cause to be paid to the Petitioner for the benefit of each of the children ( ),( ),and ( ) until they shall respectively attain the age of 18 years or shall cease full-time education, whichever shall be the later or further order for periodical payments at the rate of £( ) for each child payable monthly in advance such payments to be made by bankers standing order to the Petitioner’s account with (Bank) Sort Code ( ) Account Number ( )
  3. The Respondent to within 56 days of this Order transfer the former matrimonial home known as ( ) to the Petitioner.

Or

The property situated at ( ) be sold at such time as agreed between the parties and in default of agreement by the Court within the next 5 years and that the following provisions as to sale apply:

  1. The property be sold for such price as may be agreed between the parties or in default by the Court,
  2. The net proceeds of sale be divided equally between the parties,
  3. The net rental income until sale be paid to the Petitioner.

The Petitioners claims for financial provision, pension sharing and property adjustment orders do stand dismissed.

The Petitioners claims for financial provision, pension sharing and property adjustment orders do stand dismissed.

That neither party shall be entitled to make further application in relation to the marriage for an order under section 23(1) of the Matrimonial Causes Act 1973

That neither party shall on the death of the other be entitled to apply for provision from the estate of the other under the Inheritance (Provision for Family and Dependants) Act 1975, the court considering it is just so to order.

There be liberty to apply as to the timing and implementation of the terms of this Order.

There be no order as to costs.

 

We have a Guide to preparing and applying for a Consent Order with loads of examples which you can download here

Related Blog Posts

Restraining Orders. The Facts.

Restraining orders are injunction orders made by a criminal court-usually a magistrate court-to protect the victim of criminal behavior by forbidding the perpetrator from continuing their course of action. A restraining order can be for any length of time or even run...

read more

Co-respondent to a divorce petition?

Co-Respondent If you have been named as a co-respondent in a divorce petition brought by someone's spouse you will need to decide what to do. Obviously you are being partly blamed for the breakdown of a marriage. They are angry and some of that anger is being directed...

read more

Divorce mistakes

Things can go wrong with a divorce through mistakes even where it seems there is agreement that the marriage is over and there is no dispute over who gets what. There are a number of mistakes which are commonly made which can lead to problems.  We signpost them here....

read more

Dealing with CAFCASS

CAFCASS reports A judge who has asked CAFCASS to prepare a report advising the court on what is in a child’s best interest is going to be heavily influenced by the report which the CAFCASS officer prepares. They are not bound to follow a CAFCASS recommendation but...

read more

Should you go for a DIY Divorce

DIY Divorce How practical is a DIY Divorce? Would money saved now by doing your own divorce cost you heavily later on? For most people the answer is that a Do It Yourself Divorce is quite possible especially if: • You and your spouse have agreed everything. This will...

read more

Moving away with the children

It can be devastating if your ex or former partner intends to move away and take your children with them. When a family breaks up the parent with whom the children live will sometimes wish to move away and relocate with the children miles away from the other parent....

read more

Separated but not divorced – types of separation

Separation When spouses are not living together they may consider themselves separated - but what does that mean in the eyes of the Law? How the Law and a court looks upon a separation when a couple separate but do not divorce can depend upon the type of separation...

read more

Tips for an amicable divorce

Divorce may never be easy but it doesn't have to be stressful, expensive and time consuming. If you approach it in the right way it may not be a pleasant experience but it can certainly be made less painful. Here are some tips for an amicable divorce. 1. Don't seek...

read more

Varying spousal maintenance orders

Spousal Maintenance Orders for maintenance (or periodical payments) can always be varied, suspended or discharged on the grounds of changed circumstances (Matrimonial Causes Act 1973 section 31). The basis of an application to vary a maintenance order is therefore a...

read more

Lost decree absolute

If you are getting remarried or have to prove your marital status for whatever reason you will have to show an original decree absolute as proof that you got divorced. If it has been lost, destroyed with all other reminders of a past life, or you simply can't find it,...

read more

Is no fault divorce on the horizon?

Our divorce law dates from 1973. It has been 43 years since there have been any substantial changes to the law. Now as then, you have to show by way of the 5 facts that your marriage has irretrievably broken down. One spouse has to allege adultery or unreasonable...

read more

Freezing Orders

Freezing Injunctions On the breakdown of a marriage or civil partnership, a freezing order can be made to prevent one party from disposing of assets before the financial issues have been resolved in order to reduce what the other party might receive as a settlement....

read more

Related Books

[product_category per_page="6" orderby="popularity" columns="6" order="ASC"]