Financial Consent Orders

Your Financial Consent Order needs to cover all financial matters between you and your former partner so you can both move on with your lives in financial security and without any loose ends keeping you tied together. It should include matters such as:

• Arrangements for the family home, such as whether it should be sold or whether one party should buy the other out of their share
• The division of all other assets, including:
  • Other properties
  • Savings
  • Investments
  • Pensions
  • Personal belongings like cars and furniture
• How debts will be maintained
• Spousal maintenance payments
• Child maintenance payments

Where you and your former partner do not want any ongoing maintenance arrangement, the Financial Consent Order should also contain a full clean break provision to completely sever the financial ties between you. If there is to be ongoing spousal maintenance, you can still include a capital clean break provision which only dismisses future claims against each other’s assets.

Few people know that after the divorce or dissolution is finalised, if they have not come to a financial arrangement, their former partner could still make a financial claim against them (so long as they have not remarried).

Even if your finances are not significant now, you never know what might happen in the future. The courts have heard cases brought years or even decades after the divorce, often after one of the parties has come into some money. So, making a Financial Consent Order with a clean break clause now can protect you in case you win the lottery, inherit a substantial amount of money, or build a successful business down the line.

Married couples and civil partners are often viewed as a single unit in law. Divorce and dissolution dissolves the legal link between you and your former partner, however, you need to take extra steps to sever the financial link.

A clean break is where you and your former partner sever any financial claims and obligations towards each other once the divorce or dissolution is finalised. There are two types of clean break:

1. A full clean break - where all future claims are dismissed, including capital claims and claims for spousal maintenance
2. A capital only clean break - only dismisses future capital claims, retaining your rights to make future income claims for maintenance if necessary

You first need to come to an agreement with your former partner about the arrangement of your finances. You can either do this by discussing between yourselves or you can use Alternative Dispute Resolution (ADR).

At Crisp & Co, we offer two main forms of ADR - mediation and collaborative law.

Mediation

This involves attending a series of meetings with your former partner to discuss your financial arrangements with the help of a qualified mediator. The mediator’s role is not to provide legal advice or take sides during your discussion. They will help you focus on the issues to hand, facilitate your negotiations, and defuse any conflict. At the end of your sessions, the mediator will put your agreement into writing ready to be submitted to court to be turned into a Financial Consent Order.

Collaborative law

Like mediation, collaborative law involves attending a series of meetings with your former partner to discuss your financial arrangements. However, instead of a neutral third party, you will each have qualified collaborative lawyers to provide you with legal advice and help you negotiate. You can also invite other professionals such as accountants and independent financial advisors. For this reason, collaborative law is more suited to High Net Worth Individuals and couples with complex finances, such as investments, businesses and international property. If successful, the result will be a written agreement that you can then apply to court to turn into a Consent Order.

Our team of family lawyers includes several qualified collaborative lawyers, including our Senior Partner, Henry Crisp and Partner, Carol Christofi.

Obtaining the Financial Consent Order

You can only apply for a Financial Consent Order if:

• You have started the legal process to get a divorce or end your civil partnership
• You have not yet applied for the Decree Absolute or Final Order to officially end the relationship

When making your application, you need to provide the following documents and information to the court:

• Form D81 (also known as a Statement of Information) which includes details of things like your:
  • Income
  • Assets
  • Debts
  • Pensions
• The draft Consent Order

These documents need to be signed by both you and your former partner. One of you also need to fill in a ‘Notice of [intention to proceed with] an Application for a Financial Order’.

There are various legal clauses that your Consent Order should contain to make it legally valid and acceptable to the court. Therefore, it is important that a qualified solicitor or legal professional drafts the Consent Order on your behalf. Mediators are usually also legally qualified family lawyers.

Getting the help of a solicitor also means that a judge is less likely to question how you came to an agreement, reducing the risk of your Consent Order being rejected.

This depends of several factors, such as how long it takes to gather the relevant information (for example, getting a pension valuation can take around 12 weeks) and how long it takes to negotiate the terms of the Consent Order with your former partner. In straightforward cases, you could have your finalised Consent Order within six months.

No, the court will consider whether the Consent Order is fair and could refuse to grant it if it is deemed unfair to either you or your former partner.

Fair does not necessarily mean equal. However, the starting point for considering fairness is always a 50-50 split. The judge will then consider other factors to see whether an unequal split would be a fairer in the individual circumstances of your case.

• The factors judges take into account include:
• The financial resources of both parties, both now and in the foreseeable future
• The financial needs and obligations of both parties, both now and in the foreseeable future
• The needs of any children to the relationship
• The ages of both parties and duration of the marriage
• The physical or mental disabilities of either party
• The contributions of both parties to the relationship, including non-financial contributions such as raising children or keeping the family home
• Whether either party would lose any benefit as a result of the marriage ending, such as pension entitlements

If you and your partner have both received advice and support from a solicitor while negotiating the Consent Order, it is much more likely to be acceptable to a judge.

If the judge thinks that the Consent Order is unfair to you or your former partner, it is likely that they will ask you to provide further information about how you came to an agreement.

If they still do not consider the Consent Order to be fair after you have provided further information, they may change the Consent Order or make a new Financial Order telling you how to divide your money and property.

The biggest risk is that you and your former partner will still be financially ‘linked’ after the divorce or dissolution is finalised. This means that you could be faced with a financial claim in the future. This is also the case if you come to an informal agreement about your finances - if you do not put a legally binding clean break agreement in place, you could still be open to legal claims.

If your former partner is not following the Financial Consent Order, you can apply to court to enforce it. The court will examine all the facts and decide whether the Consent Order is still appropriate. If they choose to enforce it, the court could make:

• An Enforcement Order that requires your former partner to do between 40 and 200 hours of unpaid work
• An Order for Compensation for Financial Loss that requires your former partner to repay you any money you lost because they breached the Consent Order