Necessity of a Consent Order
6th December 2023
Many couples when they are progressing through divorce proceedings do not realise that it is advisable to pursue a Consent Order outlining the division of the matrimonial finances. Whilst the divorce itself is the ending of the marriage, that is only part of the equation and one of the most contentious aspects we find is when parties cannot decide on how to divide their assets between the two of them.
When advising clients in this respect we are guided by factors set out in Section 25 of the Matrimonial Causes Act 1973 – as is the Court. The parties’ needs and ensuring fairness are important when looking at a division of the matrimonial assets and liabilities – taking into account all of the circumstances of the case. Children under the age of 18 are a priority also and their housing needs are important when making decisions about financial settlement.
Whilst coming to an agreement about the division of matrimonial finances is important, it is also equally important to ensure that the agreement is reflected in a document known as a Consent Order. This should be signed by both parties and approved by the Court to make it legally binding.
Additionally, when providing the Consent Order to the Court for consideration, a further document known as a Statement of Information is required to give background detail about the parties’ assets and the circumstances behind the decision making. The statement of information will require disclosure of the parties’ assets in very broad terms to give the Court the background information that it requires to consider whether the agreement is fair taking into account all of the circumstances of each individual case.
Even if there are no assets or liabilities to consider, it is advisable to have a clean break Consent Order to show there will be no further claims one against the other either now or in the future as to any capital or indeed as to any income.
A Consent Order can deal with the transfer of property, payment of lump sums, a Pension Sharing Order (where one party shares their pension with the other party), spousal maintenance and also critically whether there is a clean break between the parties or whether there is an ongoing duty to pay spousal maintenance which can be set at a level of joint lives or a term of time such as years.
Parties may sometimes not be aware that where there are children, there is an ongoing obligation to pay child maintenance regardless of whether there is a clean break in the divorce. Where there is dispute about child maintenance, then the parties’ recourse is to make an application to the Child Maintenance Service to assess how much maintenance should be paid.
Samantha Chater in our Family Law team has found that those clients who can try and negotiate settlement between the two of them via mediation or with the assistance of one of our solicitors in the Family Department can expect to keep their costs to a minimum as it is always advisable to negotiate and try and settle where possible.