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A Consent Order is the single most important document that any divorcing couple are likely to sign. The agreement will cover what is to happen with their financial assets.
A Consent Order is a legally binding document between two people who have agreed to divorce and separate their financial assets. A Consent Order puts in writing everything that both parties have agreed and can be formalised by a court.
The Consent Order can address the division of personal property, joint property (such as the matrimonial home), child and spousal maintenance, pension sharing and division of debt.
A Consent Order can only be filed at court once divorce proceedings have been issued and the Decree Nisi has been pronounced.
All Consent Orders contain some fundamental features. Firstly, the Order will identify both parties, their children and will define the main financial assets to be addressed.
The Consent Order will include recordings, which will include some standard provisions and also, specific agreements between the parties, such as what is to happen to joint bank accounts. The operative part of the document is the Orders section, which might include transfer of property, lump-sum payments, pension sharing orders and provision for the payment of child or spousal maintenance.
Towards the end of the agreement, it is usual to outline how legal fees will be split. It is most common for both parties to pay for their own legal fees.
Most Consent Orders will contain a “clean break” provision if there is no ongoing spousal maintenance to be paid from one party to the other. A clean break will ensure that the financial ties between the parties are severed and that neither party can make further financial claims on the other in the future.
The Consent Order should cover all financial assets, no matter how minor. It can be easy to miss some of the less obvious things which need to be included. The Consent Order will address everything you own but also, any debts.
The Consent Order should set out what will happen to any property. This might include whether the matrimonial home is to be sold and what will be done with the proceeds. Alternatively, one party might agree to pay to the other a lump sum to gain sole possession of the property.
The Consent Order will outline how assets will be split or transferred. This may include business assets, for example. The agreement will also cover what is to be done with personal effects and may include a time frame by which each party agrees to collect any personal possessions within a joint property.
As with most Orders, the terms of a Consent Order can be broken by either party and steps may need to be taken to enforce the terms.
If an ex-spouse chooses not to comply with a Consent Order, a family solicitor may need to be hired, who will file application at court. The court can compel the ex-spouse to comply, with potential serious costs consequences if not.
Once a court has decided that a Consent Order is fair, it would be difficult for either party to seek to vary this. However, there are certain limited situations in which the Consent Order can be set aside. There is largely no mechanism by which an agreement can be changed simply because one person is unhappy with it.
A Consent Order could potentially be reopened if it can be shown that either party lied about their financial situation. Also, if there has been an unforeseen and significant change in circumstances, then a court may consider looking at the Consent Order again.
Currently, there is no time limit for former couples to apply for a financial Consent Order. This can mean that parties file a Consent Order many years after the actual divorce.