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

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