Importance of Consent Orders and no-fault divorce

read time: 3 mins

Divorce can be a stressful and emotionally turbulent time for many couples and there can be a focus on the divorce itself, whilst a discussion about finances can fade into the background. It can therefore come as a surprise that while a divorce will finalise the end of a marriage, it does not end the financial relationship between a couple.

This article explains the distinction between these elements, how a consent order works and how best to protect your position in the future.

What is a Consent Order?

A Consent Order is a document that sets out the terms of a financial settlement agreed between a divorcing couple and dismisses some or all of the rights of either spouse to make an application to Court at a later date.

Consent Orders can include (but are not limited to) provisions that deal with the sale of a property, a pension sharing order or periodical payments from one party to the other.

Crucially, a Consent Order is agreed between a couple, rather than a judge making a decision for them on what their financial settlement will be. 

How does a Consent Order fit into the new no-fault divorce process?

As has been well publicised, the introduction of no-fault divorce on 6 April 2022 by the Divorce, Dissolution and Separation Act 2020 was intended to remove unnecessary conflict from the process and simplify the language used.

Whilst we won’t go into a full breakdown of the significant changes brought about by the change in the law, it is worth highlighting how the Consent Order fits into the new process.

This new law means that you can either make a sole or joint application for divorce. Once you have filed this divorce application and a minimum of 20 weeks has passed from the date of the divorce application being issued (i.e. the divorce process being formally started by the Court), you can apply for a Conditional Order. Once a further 6 weeks has passed from the date of the Conditional Order being pronounced, you can apply for a Final Order, which will finalise your divorce.

You can only submit a financial agreement, in the form of a Consent Order, after the Conditional Order has been pronounced. If the judge feels that the financial settlement you have reached is fair to both parties, they will approve the Consent Order. Whilst you can apply for a Final Order before your Consent Order has been approved, in general, it is better to wait until you have a binding financial agreement. However, we would recommend taking specialist legal advice on the timing of these applications, which will depend on your particular circumstances.

Why is it important to obtain a Consent Order?

For a divorcing couple, it is important to differentiate between the process of agreeing a financial settlement and the divorce itself.

Without having a Consent Order approved by the Court, in theory, the financial claims that you or your ex-spouse have against one another could remain open for the rest of your lives, even if you have a Final Order in divorce proceedings. This could mean that any assets you had built up since the divorce could be at risk of becoming part of a future financial settlement.

By ensuring that you have an approved consent order, you ensure that you have a binding financial settlement and tie off the risk of future financial claims and protect your position.

A solicitor can guide you through this process and assist with the drafting of the consent order, to help make sure your situation is secure as possible.

For more information on this article, please contact John Ebenezer or another member of our Family team.

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