Consent Orders
£14.99
When financial issues following a divorce are agreed between the parties, they must be given legal effect by asking the court to make a consent order in the terms which have been agreed. Before making the order, the court will ensure that the agreement is fair and reasonable, and complies with the statutory guidelines. Unless this is done, the settlement between the spouses will not have legal effect and will not be enforceable.
To obtain a consent order it is necessary to send a draft of the order required to the court. This guide contains a comprehensive set of precedents to enable you to prepare your own draft order. It explains the procedure for submitting your application with the draft order and the additional information required by the court.
Introduction
Divorce brings to an end a marriage but it does not bring to an end the financial links
which stemmed from the marriage. These continue until brought to an end by a separate order of the court. How property and assets are divided up following a divorce
can be decided by a judge in contested court proceedings or agreed between the spouses. Where there is agreement, the terms of that agreement must be submitted to
the court and, if found to be fair and reasonable and to comply with the law, an order by consent will be made. Often, the consent order will incorporate a clean break, whereby no further claims can be made by either party against the other.
Section 33A of the Matrimonial Causes Act gives the court power to make financial
orders in matrimonial proceedings by consent. Although the order may be what you and your former spouse want, the order will derive its force from the court’s order rather than your agreement. The court will therefore carry out a broad appraisal of your and your spouse’s financial circumstances ‘without descending into the valley of detail’.
The court is not just going to rubber stamp and give its approval to any old settlement just because it is what you and your spouse have agreed. It must be proper in all the
circumstances, comply with the provisions of the Matrimonial Causes Act and be
properly drawn and all embracing. It must be fair and equitable.
The duty of full and frank disclosure will attach itself to your negotiations leading up to
the agreement, and a summary of these must be sent to the court for consideration by
the judge before making the consent order.
This information is provided on Form D81. You will also need the prescribed application
form for a financial order in form A. Fill in the details of your case and add ‘an order by
consent in the attached terms’. You must attach a draft of the order sought, as this will
not be prepared by the court. There will also be court fee of £80 to pay.
You must therefore send or take to the court dealing with your divorce the following
signed and dated documents:
Form A. Notice of application for a financial order
Form D81- Statement of Information
Draft order. Three copies will be required
Court fee of £50.
CONTENTS
Consent Orders 5
The construction of your Order 5
The Heading 7
Definitions 8
Recitals 8
Undertakings 10
Example of undertakings relating to mortgages 11
Example of undertakings relating to insurance policies 11
Undertaking by way of indemnity 12
Undertakings in respect of liabilities 12
Undertaking to leave by will 13
Undertaking as to death in service benefit 13
Undertaking to maintain pension contributions 13
Undertaking to give notice of retirement 14
Undertaking to commute/not to commute pension 14
Undertaking to draw benefits/not to draw benefits 14
Body of Order 14
Orders for maintenance and periodical payments 16
Maintenance pending suit 16
Order for periodical payments at same rate as maintenance pending suit 16
General periodical payments order 16
Periodical payments order to be increased by retail prices index 17
Immediate dismissal of periodical payments—’clean break’ 17
Deferred dismissal of periodical payments—’extendable’ 17
Deferred dismissal of periodical payments—final 17
Secured periodical payments order 18
Child periodical payments 18
‘Segal’ order 18School fees order 19
Periodical payments by standing order 19
Lump Sum Orders 19
Lump sum by instalments 19
Deferred lump sum order 20
Property Adjustment Orders 20
Property transfer order 20
Property adjustment order upon payment of a lump sum 20
Property adjustment order subject to a charge-back 21
Property adjustment order subject to a transferable charge-back 22
Deferred trust for sale – Mesher order 24
Deferred trust for sale—Martin order 25
Order for sale of property 26
Clean break 26
Order preventing claims under the Inheritance (Provision for Family and Dependants) Act 1975 27
Procedural Points 27
Pension sharing order 27Ending 28
Example Orders 29
Example 1 29
Example 2 31
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