A financial order is an essential part of the divorce process. Without an order, your former spouse could make a claim against you in the future. The best way to obtain an order is usually by consent. This means that you and your spouse will agree on how your assets and liabilities will be shared.
Your solicitor will then put the details into a draft consent order and ask the court to approve it. If the court is satisfied that the agreement you have reached is fair to you both and that any children involved are provided for, it will seal the document, making a binding financial consent order.
Both you and your former spouse will need to comply with the terms of the order. This could mean transferring property, paying a lump sum or arranging to make maintenance payments, depending on your agreement.
Clean Break Financial Consent Order
If no maintenance is ordered and the parties have no further claims against each other, a consent order is often referred to as a clean break financial consent order.
Where the court is asked to make an order, it can choose from a range of options, including:
- Payment of a lump sum by one party to the other.
- Property transfer, so that one party becomes the sole owner of the home.
- A pension sharing order, giving one party a percentage of the other’s pension provision.
- A pension attachment order, where one party will receive a payment from the pension when the pension holder retires and starts to take their pension. This option is not widely used because the party without a pension has to wait until their former spouse retires to receive any payment.
- An order requiring the payment of spousal maintenance; it should be noted that the courts often prefer that the parties reach the point where they can support themselves, so spousal maintenance may only be ordered for some time, to allow a spouse in a weaker financial position to train and find a job.
What is the Difference Between a Financial Consent Order and a Clean Break Order?
A clean break order is a type of financial order and can be made by consent or as a result of an application to the court.
Courts often aim to provide a clean break for couples, allowing them to rebuild their lives separately and without ongoing financial obligations. Where one party is in a financially weaker position, the court may decide that they need spousal maintenance or that it is fair to provide this.
Can You Divorce Without a Consent Order?
While it is possible to divorce without a financial order, it is crucial to address finances during the divorce process.
Whether you agree on a consent order with your former partner or you need to apply to the court, you need a financial order in place to protect your interests in the future.
There is no time limit on applying for a financial order. This means that your spouse could make a court application many years into the future.
Can You Get a Consent Order Following Divorce?
Yes. If you have divorced but you do not have a financial order in place, you should speak to a divorce solicitor about obtaining one. This can be a consent order if you and your former spouse can agree on the terms.
Otherwise, you can ask the court to make an order.
How Do You Agree on a Consent Order?
The first step in dealing with finances in divorce is for each party to make a full disclosure of their financial position. This is usually done by filling in a lengthy form known as Form E. It asks for details of your assets, income and liabilities as well as basic family information, such as who else you are supporting.
You can then negotiate with your partner to try to agree on the splitting of your finances. It is usual to ask a solicitor to represent you. They will be able to put your case on your behalf and ensure that any agreement reached is in your best interests.
They will also be able to give you some guidance as to what you could expect, should your case end up in court.
If it is not possible to reach an agreement with your former partner, you will usually have to consider mediation, unless domestic violence is a factor. You can attend a Mediation Information and Assessment Meeting, also referred to as a MIAM. A mediator will explain the process to you, and you will have the opportunity to ask questions and consider whether mediation is likely to be helpful.
Even if you do not decide to go ahead, the mediator will be able to sign a form confirming that you have considered mediation. The court will require this before agreeing to hear a financial application.
If you decide to try mediation, the mediator will work with you and your former partner to help you explore the options for settlement. They will not impose a decision on you, and you are free to walk away from the process at any point.
There are also other types of alternative dispute resolution available, including early neutral evaluation and collaborative law. Early neutral evaluation can give you an idea of the strengths and weaknesses of your case at the outset, so that you can make an informed decision about what action you want to take and understand what you might realistically achieve, should you go to court.
Collaborative law is a type of roundtable negotiation. You and your former partner will both attend with your solicitor to hammer out an agreement face-to-face over one or more meetings.
Once you have decided how to divide everything, which will usually include property, savings, pensions, investments, bills, your mortgage and debts, the details will be put into a draft order by your solicitor. They will then send this to the court for approval.
How Long Does the Court Take to Approve a Consent Order in Divorce?
This depends on the court’s workload. Family courts are generally very busy with substantial backlogs. Approval may be given within four to ten weeks. It will take much longer if you need the court to hear your case and make the order itself.
Do You Need a Financial Order If You Do Not Have Any Assets?
Yes. Even if you have no assets, you must have a financial order made to protect you in the future. In the case of Wyatt v Vince [2015], a couple divorced without a financial order. They had no assets at the time and lived as new-age travellers during their marriage.
After their divorce, Mr Vince formed a green energy company, Ecotricity, which was later valued at around £57 million. The court allowed Ms Wyatt to apply to the court for a financial order more than twenty years after their divorce. Although she was not awarded a large sum, the case opened the door for applicants to make a claim many years after a divorce if no financial order was made at the time.
What Happens If You Cannot Agree on How to Split Your Assets on Divorce?
If you and your former partner cannot agree on how to divide your assets and liabilities, and mediation or another form of alternative dispute resolution is not successful, you can apply to the court for a financial order.
Your solicitor can draft the application and put together a strong case on your behalf. This can be a lengthy process, as the courts are often extremely busy, so it is generally advisable to try and resolve matters by agreement where possible.
However, in certain circumstances, the court may be the better option. This includes where one party is dominated by the other and likely to be overwhelmed in a process such as mediation. Your solicitor will be able to advise you on the right option for your circumstances and ensure that your interests are observed.
Can The Court Reject a Consent Order?
Yes, the court has the option of rejecting a financial consent order. It will examine the details of the assets and liabilities alongside each party’s position, including looking at issues such as whether they have given up their career to care for children and whether they have obligations that mean they are unable to work.
If the court feels that the order does not fairly meet both parties’ needs or that children are not adequately provided for, it will not give its approval. Similarly, it must be satisfied that both parties have made full financial disclosure before negotiating the terms.
How Much Does it Cost to Get a Financial Consent Order?
The cost of obtaining a consent order will depend on the legal work required and how easy it is to reach an agreement over the terms and conditions.
If lengthy negotiations are needed, there will be more work for the solicitor. However, if it is possible to agree fairly quickly, the costs can be relatively low. For more information, you should speak to a solicitor to discuss your situation.
There is also a small fee payable to the court.
Can a Consent Order be Changed?
The courts like to give parties certainty wherever possible. This means that consent orders are not often varied, except in the following circumstances:
- One party did not fully disclose their assets, they misrepresented the situation, or were fraudulent
- One party was subjected to duress
- There is an unforeseen change in circumstances
- There is a substantial change in a child’s needs
This means that it is important to negotiate the best possible terms for your order and ensure that you obtain a financial settlement that will adequately support you for the future.
Contact Our Divorce Solicitors
If you are facing a divorce or separation, our experienced family law solicitors can advise you on your rights and discuss financial matters with you. We can represent you in negotiating a settlement, assist you during alternative forms of dispute resolution and, where necessary, put forward a strong case in court on your behalf.
For more information, see our family law page.
To speak to one of our expert divorce solicitors, ring us on 0330 173 3980, email us at info@witansolicitors.co.uk or fill in our contact form, and we will talk through your situation with you and discuss how we can assist.
FAQ
What is a financial consent order?
A financial consent order is a legally binding agreement between divorcing couples that settles financial matters, including asset division, spousal maintenance, and pension arrangements.
Can you get divorced without a financial consent order?
Yes, you can divorce without a financial consent order, but it’s recommended to finalise financial matters to prevent future disputes.
What is the difference between a financial consent order and a clean break order?
A financial consent order can cover a range of financial settlements, including maintenance and asset division, while a clean break order specifically ensures that both parties have no ongoing financial obligations to each other.
How much does a financial consent order cost?
The court fee for applying for a financial consent order is typically around £50, though solicitor fees for drafting the agreement can vary.
What is the Consent Order Process?
- Gather Information: Complete the Statement of Information (Form D81) detailing personal details, assets, debts, and intentions.
- Draft Proposed Consent Order: Prepare or have a solicitor draft the financial settlement agreement.
- Complete the Application: Fill out Form A (Notice of Intention to Proceed with a Financial Order).
- Submit to Court: Send the application, proposed order, statement, and court fee to the court.
- Court Approval: The judge reviews the order. If fair, the order is approved without court attendance. If unfair, modifications may be requested.
