Do you need a financial consent order when you get divorced? The straightforward answer to this question is “Yes”. Whether you have many assets or no assets at all, in general, we recommend that all divorcing couples submit a financial consent order with the Court.
|What is a financial consent order?|
A consent order reflects the financial agreement reached between divorcing couples or couples who are dissolving a civil partnership.
It should be drawn up by a solicitor or other legal professional with expertise in family matters – for example, our specialist divorce team is led by Meinir Wyn Jones. She will advise and help you in a professional, sensitive and empathetic way.
You don’t both need separate legal representation, but it is advisable to obtain legal advice and ensure the agreement reached is fair and reasonable.
The consent order is only valid if it has been prepared correctly and approved by the Court. You do not have to attend Court to make an application for a consent order.
What’s included in a financial consent order?
The consent order will reflect the financial agreement – for example, in relation to property, lump sum payment, pension share or maintenance.
It be based on an agreement reached between the two of you, whether privately, or through mediation, or through negotiations between both parties’ legal representatives.
It is important that both parties provide full and frank disclosure of all assets, liabilities and income so we can provide appropriate advice as regards to a fair settlement.
Where there are no assets, or you agree there is nothing to be agreed upon, it can simply be a “clean break” order.
What is a clean break order?
The effect of a clean break order is to:
• Terminate the financial obligations of each party towards the other in life and/or death
• Bring the financial proceedings between the parties to a final conclusion
A clean break does not have to be immediate and will depend on the agreement reached between the parties e.g. where spousal maintenance has been agreed. The Court will, however, seek to achieve a clean break as soon as practically possible.
Why do we need a formal agreement?
Even if both parties have reached agreement between them, an agreement that has not been formalised by the Court will not be legally binding.
This means the agreement reached between the parties themselves does not bind (compel or obligate) them. Therefore, even after divorce has been finalised, either spouse can make an application to the Court for financial remedy. There is no time limit for an application for financial remedy to be made and can be made unless you have re-married or entered a civil partnership.
Both parties may decide they trust one another enough that a clean break order is not required. There is, however, always a small risk that either party could change their mind. For example, one spouse’s financial circumstances may change significantly and may lead to the other spouse making a financial claim.
If one of you were to re-marry or enter a civil partnership, this would not mean the other cannot make a claim for financial remedy, unless he or she also remarries or enters a civil partnership.
Of course, if an application is made at any point after divorce, the Court would have to consider the merit of such application. The Court would also need to consider your financial position at the time of separation and at the time of making the application.
While the application can be made, it does not necessarily mean the other spouse will be successful in their claims.
Either way, you would both need to provide full and frank disclosure before the Court can consider any claims, and costs will be incurred in getting to this stage.
To achieve certainty that all financial claims are dismissed, you need a clean break consent order. It is only by obtaining a sealed (approved) court order that the financial claims that you each have against the other by virtue of your marriage or civil partnership can be dismissed.
If you or someone you know is facing a divorce, please contact us for advice. We’ll be happy to help.