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A Consent Order is a written record detailing the agreed division of matrimonial assets and liabilities upon divorce or dissolution of civil partnership. This might include agreements relating to pensions, property, savings and investments, and also spousal and child maintenance payments. Obtaining a Consent Order is an obvious step when there is disagreement between couples about who should get what, but is a Consent Order really necessary when the divorce or dissolution is amicable?
Firstly, it is important to remember that the "matrimonial pot" covers all assets and liabilities in the individual names of the couples, not just those held in joint names. Some couples conclude that if at the time of divorce there are no assets to share, each party wishes to keep those matrimonial assets that are in their sole names, or neither party is requesting spousal maintenance from the other, a Consent Order is a costly and time-consuming unnecessity. Alternatively, the couple may have come to a private arrangement, either verbally or in writing, and assume that this will be enforceable by the court if it is disputed later down the line. Or they may wish to expediate the divorce and save costs by dealing with all legal matters without legal representation.
The bottom line is that the law in England and Wales stipulates that pronouncement of Decree Absolute – the final stage of legally finalising a divorce – is not sufficient to sever financial ties between previously-married couples. The legal severance of financial ties is known as a clean break. A draft Consent Order must be approved by the court to become legally binding, and a Consent Order that is not legally binding cannot later be enforced by the court. This means that if for any reason you do not have a court-ratified Consent Order at the time you obtain Decree Absolute, your former spouse remains legally entitled to make a financial claim against you at any time in the future.
Future financial claims would be against your financial situation at the time of the claim. Potentially, property you have bought since divorcing, your earnings, savings and investments, and any windfalls such as redundancy payments, inheritance or even a lottery win, could be at risk.
The solution is to ask the court to approve a draft Consent Order no matter the circumstances through which you have arrived at an agreement. Even if you are in complete agreement with your spouse either directly having gone through mediation, or the matrimonial pot is empty, a court-ratified Consent Order will serve to end your financial ties at the same time as your marital ones. The court will not simply approve the Consent Order because the terms have been agreed between the parties. The terms must be deemed fair to be fair to both parties before the court will approve it. Once the Consent Order is approved by the court, it becomes a Court Order and is legally binding and irrevocable.
For further information and advice on this issue, and other family law issues, please contact us for a free initial consultation on 01992 306 616 or 0207 956 2740 or email us.Back to Law Articles