Why a divorce is not enough: The need for consent orders
There were 107,599 opposite-sex divorces in 2019, an increase of 18.4% from 90,871 in 2018. This is the highest number of opposite-sex divorces recorded since 2014 when 111,169 divorces were granted in England and Wales. It is also the largest annual percentage increase in the number of divorces since 1972, following the introduction of The Divorce Reform Act 1969, which made it easier for couples to divorce upon separation.
The implications of divorce
Some people get divorced without consulting a solicitor. They do not perhaps realise all the implications of the process. Many do not appreciate that obtaining decree absolute can deprive one of their former spouse’s pension’s death in service benefits.
There is a misconception that a divorce resolves financial and property matters between a couple. It doesn’t. Notwithstanding the divorce each party may still make claims against the other for income, lump sum, property and pension orders and such orders can be made against assets acquired years after separation if needs arguments prevail.
The only way to avoid future claims being made is to have them dismissed. This is normally done by having a draft consent order prepared which enshrines the agreement a (former) husband and (former) wife has reached. A consent order can create a “clean break” settlement if that is the appropriate outcome. This protects any money or assets that you may earn or receive in the future from being claimed by your ex-partner.
What is a consent order?
A consent order is an important and technical legal document upon which each party should get independent specialist family law advice. It is made up of three main sections, recitals, undertakings and orders. Recitals set out what the couple have agreed. Undertakings are enforceable promises to the court and, if breached, punishable by way of a fine or even imprisonment. Orders are the operative part of the document and deal with financial and property matters as well as pensions. Orders can also include a dismissal of claims.
A consent order enshrines a legally binding agreement between the parties. It can be applied for at any time after decree nisi. One should only negotiate a settlement where there has been mutual full and frank financial disclosure. This disclosure is a court requirement. A judge can only consider a draft consent order if it is accompanied by a D81 form, a statement of information setting out each spouse’s income, capital and pension provision. Each party must sign a statement of truth confirming the contents of the D81 are true.
How is the order obtained?
The draft consent order must be signed by the parties and their legal representatives. It is uploaded to the court portal, MyHMCTS, and is supported by a completed and signed D81 statement of information. Currently a court fee of £50 is payable which is normally shared between the parties. It can then take some four to six weeks for a judge to consider the draft order which is not a rubber-stamping exercise. A judge must actively exercise their discretion to ascertain if the agreement sought is fair and within the realms of reasonableness.
What happens next?
Once the order is approved and sealed by the court its terms must be implemented. The order may provide for the sale of a property and a division of its net sale proceeds. If it contains a pension sharing order it must be served, complete with pension annexes and decree absolute on the relevant pension institution which can take up to four months to implement the order.
The remarriage trap
It is crucial that an application for a financial order is made before any remarriage. This is because if no such claim is made before marrying again one is statute-barred from ever resolving original matrimonial finances.