As this is a legally binding document, B P Collins’ family team advises it is important to understand what a final financial order is and what it does.
When you and your ex-spouse or partner have reached an agreement about your financial obligations or arrangements for the future, a consent order formalises that agreement.
When you marry, or enter a civil partnership, financial obligations between spouses or partners are opened. When the final order of divorce is granted (formerly known as a decree absolute) this brings the contract of the marriage to an end, but this does not simultaneously close your financial obligations. An ex-spouse or partner can still make a financial claim (whether that’s for income, capital, or pension assets) until such time as those financial obligations are brought to a formal end.
Therefore, if not closed, such claims will remain open indefinitely (even if you and your former spouse or partner had a verbal agreement between you at the time of your separation about financial arrangements).
To bring financial obligations to an end, you therefore need a distinct order setting out how income, capital, and pensions are to be distributed following the breakdown of your relationship, and dismissing each other’s financial claims against each other (either immediately or at a specified future date, where necessary).
A consent order will need to be approved by the court (who will seal it for you) at which point the agreement will be binding, and enforceable.
An agreement can be reached between you and your ex-spouse or partner at any stage (i.e., directly between you, with the assistance of legal advisers, and even during court proceedings). We would always recommend negotiations taking place after an exchange of financial disclosure, to ensure you’re aware of the bigger financial picture available for division.
The court will look to see whether the agreement reached is fair and reasonable (applying the section 25 factors of the Matrimonial Causes Act 1973 in their assessment) before approving any order i.e. it is not an automatic approval just because you and your ex-spouse or/partner both agree to the terms. Therefore, we recommend speaking to a specialist family lawyer to understand your rights, obligations, and the range of potential outcomes for consideration.
In brief – the scope of the Consent Order:
- Setting out financial claims relating to capital, income, and pensions and how these are to be distributed.
- Stating the end date for financial claims, whether immediately or at a future date so that they cannot remain open indefinitely.
- Enforcement provisions such as for the delayed payment of a lump sum.
More detail – what the court can order:
- Financial provision: including spousal periodical payments (secured or unsecured) and lump sum orders.
- Property adjustment: including transfer of property, settlement of property and variation of settlement orders (such as pre-nups / post-nups).
- Orders for sale of property.
- Pension sharing/transfers
- Interim financial orders: including maintenance pending suit
- Clean break: in relation to capital claims, income claims, and/or pension claims – where appropriate.
- Additional provisions:
- The order may include an agreement not to make claims against the other’s estate in the event of their death (in accordance with the Inheritance (Provision for Family and Dependents) Act 1975).
- The order can record matters of ‘fact’ specific to the separating spouses, which may assist the court to have on the face of the order.
- The order can record an ‘intention’ for evidential purposes, such as the intention ‘not to do something’, i.e., restricting a party’s right to legally do a particular act.
- Recording agreements which form part of the overall settlement, but which cannot be framed as ‘promises’ to the court (see below) i.e., an agreement as to how the contents of the family home shall be divided.
- Undertakings: briefly, an undertaking is a solemn promise to the court for the payment of money, or to do/not to do something, which is both binding and enforceable, and for which there are consequences if breached. For example, an undertaking to continue to pay the mortgage on the family home until the property is sold.
- The order may set out indemnities: for example one spouse may indemnify the other in relation to the monthly repayments on a joint mortgage pending sale of the family home.