Often, when couples think about getting a divorce they do not realise that finances are dealt with separately to the divorce process itself.
Once the parties have reached “Decree Nisi” stage in their divorce then it will be open to them to make an application to the court for a financial order. The court will always encourage parties to reach an agreement between themselves and to do so amicably as possible. If an agreement can be reached, whether between the parties independently, or through negotiations in mediation or through the parties’ respective solicitors , it is important that this agreement is recorded within a “Consent Order”. But what are Consent Orders and why are they so important?
Consent Orders are a formal means of recording a financial agreement. A draft order will be prepared by the solicitor which records the terms of the agreement, and this will be filed at the court along with a “Statement of Information” form which will detail the parties’ respective financial information including their income, any properties held and other capital, liabilities and pension valuations. The parties will not be expected to provide supporting documents but they have a duty not to mislead the court and they will have to sign a statement of truth that the information provided is correct and that they have provided full disclosure of the facts. Thereafter, the court will consider whether the agreement represents fair and proper financial provision for the parties and in doing so will look at all of the circumstances of the case. If the court is satisfied that the agreement reached is fair, then they will seal the order. If the judge is not satisfied then he or she may return the forms to ask for clarification, or order the parties to attend a hearing.
Consent Orders are legal documents and so they can be enforced if ones of the parties were to breach the order. Often, the Consent Order will provide for a “clean break” which bars either party from making a claim on the other’s finances in life and in death. The parties will therefore be able to start anew and will no longer be dependant financially on one another. The court is under a duty to consider whether a clean break can be made, although this may not be possible where the order makes provision for the provision of maintenance.
Depending on the nature of the agreement reached between the parties, the Consent Order can make provision for a variety of financial orders including lump sum payments, property adjustment orders to include the sale of the property, pension provision such as pension sharing and pension attachment orders and maintenance- whether spousal, or in exceptional circumstances, child maintenance.
It is therefore essential that the Consent Order is correctly drafted to reflect what has been agreed by the parties and to provide for a clean break if appropriate.