Divorce Proceedings: Consent Order

Divorce Proceedings: Consent Order

This article will discuss what a Consent Order is, why you should get one and how to get one.
 
There are a number of terms that you may come across when going through the divorce process. One of these is ‘Consent Order’. This article will discuss what a Consent Order is, why you should get one and how to get one.
 
A Consent Order, is an Order made by a Judge in financial matters relating to divorce, where both parties have agreed to the division of assets and consent to an Order being made without the need for a Court hearing.  Many parties going through a divorce can reach an agreement amicably and, as such, they can sign a Consent Order.  As the name suggests, the consent of both parties is required; without it the Consent Order cannot be entered into. This is true even if Court proceedings have started, those involved can negotiate and reach an agreement rather than the Court having to make a decision on their behalf. Such an agreement is then drafted into a Consent Order.
 
A client will be advised to enter into a Consent Order even if there are no assets of the marriage to divide.  This is because, once an Order is in place, neither spouse will be able to make any claims in the future (unless it is proven that assets were not fully disclosed), and neither can claim upon the other’s estate upon his/her death.
 
The Consent Order will set out what is to happen to any property, ie transfer to one of the parties or sale, either now or in the future, and will also deal with payment of any lump sum, pension share, spousal maintenance and transfer/sale of any other asset such as shares.  It is not usual for child maintenance to be included as this is a separate issue, and the Court has no powers to deal with child maintenance, however if a spouse has agreed to cover certain fees for a child, ie educational costs, these will be included.
 
It is important to note that if the Order includes a transfer from joint names of the parties to just one name, or there is a payment of a lump sum, the person releasing their interest in the property, or making the payment, will have to give an Undertaking to the Court. An Undertaking is a formal promise to the Court to do something (or not to do something). This is dealt with by the person giving the Undertaking signing the relevant clause in the Consent Order.  If an Undertaking is breached, ie not complied with, the other party can apply to the Court for enforcement.

The start of the Order, known as the “recitals” can also set out what has already happened, for example if the former matrimonial home has already been sold.  It is not necessary to have a Consent Order in place to commence division of assets but any agreements reached should be set down in a Consent Order as soon as possible.
 
To enable the Court to approve a Consent Order the parties send to the Court a draft Order which contains the terms of their financial settlement, together with a document called a Statement of Information form which will set out, amongst other things, the capital, pension and incomes of both parties, as well as where both parties and any children live, and whether that home is owned or rented.  It is of the utmost importance that parties to the divorce fully and frankly disclose their financial circumstances.
 
A District Judge or Deputy District Judge sitting in the Family Court will consider the terms of the proposed Order with reference to the financial position of the parties and will then make a decision as to whether the terms of settlement are fair and equitable, taking into account the circumstances of that particular case.  If the Judge approves the order it is then sealed and sent to the parties in order to implement.  The Court has a discretionary approach and does not have to endorse the Consent Order even if it is agreed upon by both parties.  However, if both parties have obtained independent legal advice, provided evidence of their financial circumstances and the proposed financial settlement is reasonable it is likely that the Consent Order will be approved.
 
To summarise, the Consent Order will incorporate three main sections:-
=Recitals - these are agreements that have been reached between the parties which the Court cannot order but should be recorded on the Consent Order so as to provide clarity.

=Undertakings - these are promises that are made to the court, that if breached can be enforced by the Court and have to be signed by the person they are applicable to.

=Orders - these are the agreements that the Court orders in relation to property, money and pensions.
 
A Consent Order is a legal document that is best drafted by an experienced legal professional. For legal assistance and advice in drafting a Consent Order consult divorce solicitors in Preston.
 
About the company:
MG Legal solicitors is a law firm of renowned professionals who specialise in family law matters. To find local family solicitors in Preston contact MG Legal solicitors today. To consult solicitors in Lancaster contact an MG Legal solicitors office.

 
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