In order to finally reach an agreement with your ex-partner on financial considerations, it is very important that you formalise this in writing. A verbal agreement is not sufficient so you will need to get what is known as a consent order.
Orders need to be presented to the court in a legal format, but it does not necessarily have to be produced by a solicitor. This guide will take you through the order process.
A clean break means that there are no other payments on a monthly basis other than child maintenance.
Unless there are circumstances where it would cause difficulty (in terms of financial considerations) the courts usually prefer clean break consent orders. This is a decision which the court will take.
• An order does not have to be drafted by a solicitor, but it does have to be in a format which is acceptable to the court.
• You need to take legal advice before you enter into a consent order.
• Orders have to be signed by both parties.
• A judge will decide on whether to approve a consent order through a family court.
The technical expertise required to write a order is high. It is not something that can be attempted by the layman.
This is because of the official status of an order. It is actually a legal document which has special contractual status.
Various courts can enforce an order. From County, Magistrates through to High Court – all can enforce a consent order.
A piece of paper where you have agreed your own ‘informal’ order does not have the same legal status.
This is because it is not binding. It has no legal power, and the parties who have signed it can not be compelled to meet its conditions.
As with any technical document, the wording is extremely important, and only a legal expert with sufficient training can produce a consent order.
It is important to demystify the divorce process and to think about what it means in practice. There are formal protocols, which must be followed, in bringing a marriage to an end.
However, in practice, these involve following a set of formalised legal procedures between a solicitor and a county court judge.
What people don’t know is that although this brings the marriage to an end it does not deal with other important matters.
In particular, it does not involve considering what is, for most couples, a primary consideration, which is how property and assets are to be divided.
This means that in the future you may be liable to your partner making a significant financial claim against you.
In some cases, it is actually not necessary to get a consent order at all.
If there are no assets or liabilities to decide upon, or if you can reach an informal, tacit, agreement then you can go ahead without a consent order.
However, although it is not necessary to get an order this does not mean that you should not consider getting one.
In particular, things change in relationships.
Verbal agreements are notoriously known for breaking down. This is because there can be a significant change in people’s relationships over time.
New partners can enter the scene and people’s views on their older relationships can change.
It is obviously a good idea to protect yourself through an order.
We would advise that you contact us to prepare a consent order for you, even if you think that everything is settled at present.
Then we can get it agreed by a judge in a court.
An order usually includes the following, although this list is not comprehensive and will differ according to your individual circumstances:-
• The financial considerations of the divorce.
• The division of assets.
• Child maintenance.
• Spousal maintenance.
• What is to happen to the property. Whether the property is to be sold, how it is to be divided, and what will happen to the proceeds.
• Pension sharing, if necessary.
• The division of shares and future dividends.
No, child residency and similar considerations are not covered through a consent order. A consent order does not cover child contact arrangements.
The consent order is a legal document and has a special legal status and so you should take advice before you sign it.
A consent order can only be altered if the ex-wife and ex-husband both agree to us.
Rarely, another judge can decide that a consent order can be made if there is an application to the court. Basically, both parties must agree to change a consent order except in a few exceptional cases.
• Dishonesty when completing the consent order will mean that the order can be set aside.
• If an unexpected event happens that could not be anticipated in the order then it may be set aside.
• The order must be signed of the parties own free-wills, no coercion or force may be used. If this is not he case, then the order can be set aside.
In terms of the legal process, our advisors can help you with the consent order.
The order is rubber-stamped by a judge on completion.
No, you can not.
By their nature, they must be a free and mutually agreed statement between the ex-husband and ex-wife.
We suggest mediation if a consent order can not be agreed upon.
Other alternatives are to take the legal route or to continue with the negotiations.
Sometimes, one of the parties is unreasonable and refuses to complete the order. In that case, a legal route can be taken and you can apply to court.
The judge will ultimately decide if the order is accepted.
In doing so they will ask a number of questions:-
• Fairness – are the legal and financial agreements fair and reasonable?
• Are the arrangements fair to children, if there are any?
• Was it completed under duress?
• Has it been completed accurately?
• What advice (legal) did parties look for before completing the agreement.
In making these judgements, the judge will be looking at legal precedents to work out whether the case is fair. Judges do have some discretion in deciding this.
In this case, the judge will either contact you in writing to ask for more information. They may even convene a court hearing to find out more facts about the case.
No, if you are not getting divorce you can not get a consent order. In this case you will have to get a separation agreement.
This also includes financial agreements but it is not as legally binding as a consent order.
A separation agreement is not as binding as a consent order but it is provides a minimal level of protection. For example, a judge may consult this in deciding upon their decision.
If an ex-husband or ex-wife refuses to sign the consent order then there are several solutions:-
• Mediation is one way to reach an agreement. It must be noted that consent orders often are sent back and forth between parties.
• If a party backtracks without good reason, then it is possible that the agreement can be ‘sealed’ by a judge.
• Caution is required, as when an agreement is reached in front of a judge you can not back out of this.
Because every consent order is different, depending upon individual circumstances, it is not possible to say that there is one consent order for every couple. However, you can see examples of typical consent orders if you ask for our advice.