Consent orders and clean breaks: making your financial agreement legally binding

A consent order is a court order recording an agreed financial settlement following divorce or civil-partnership dissolution.

It may deal with:

• the family home and other property;
• lump-sum payments;
• savings and investments;
• debts and liabilities;
• pensions;
• spousal maintenance;
• sale or transfer arrangements; and
• the dismissal of future financial claims.

Once approved, the order is binding and may be enforced if a party does not comply.

A clean break dismisses specified future financial claims between the parties.

Depending on the circumstances, this may include claims relating to:

• income;
• capital;
• property; and
• pensions.

A clean break is not appropriate or immediately possible in every case. For example, ongoing spousal maintenance may mean that income claims remain open for a defined period or potentially longer.

The drafting must accurately reflect which claims are being dismissed and when.

An agreement reached privately, through mediation or in correspondence may record the parties’ intentions, but it is not necessarily enforceable as a court order.

Without an approved order:

• future financial claims may remain open;
• enforcement may be difficult;
• pension sharing cannot be implemented;
• property arrangements may not be adequately protected; and
• disputes may arise about the meaning or implementation of the agreement.

The court must decide whether the proposed agreement is fair in the circumstances.

The parties will normally provide:

• the proposed consent order;
• Form D81;
• information about income, property, savings, liabilities and pensions;
• details of the proposed division;
• an explanation of how each party will meet their needs; and
• any required pension-sharing annex or associated documents.

The current D81 encourages parties to complete one joint form where possible.

The duty to provide accurate financial information remains important even where the parties agree.

The court cannot approve a financial consent order before the conditional divorce order or decree nisi has been granted.

It is usually sensible to deal with the financial order before applying for the final divorce order, particularly where pensions or inheritance consequences may arise.

The financial order normally takes effect once the final divorce order or decree absolute has been made, subject to its particular terms.

The usual process involves:

1. agreeing the financial terms;
2. obtaining any necessary legal, pension, mortgage or tax advice;
3. preparing the proposed consent order;
4. completing Form D81;
5. signing the required documents;
6. filing the application and paying the court fee; and
7. responding to any questions raised by the judge.

The court may:

• approve the order;
• request clarification;
• require amended documents;
• ask for further financial information; or
• list a short hearing.

The current court fee for a financial order by consent is £62, although fees can change. Help with Fees may be available.

Where the agreement includes pension sharing, additional formal requirements apply.

A pension-sharing annex will normally be required, and accurate scheme details must be used. The pension provider may also charge an implementation fee.

Independent financial or pension advice may be appropriate before an agreement is finalised. Price Family Law does not provide regulated pension advice.

Common problems include:

• assuming the divorce itself dismisses financial claims;
• relying on an informal agreement indefinitely;
• using unsuitable template wording;
• failing to deal with all potential claims;
• providing inconsistent figures in the order and D81;
• omitting pensions;
• failing to explain how housing and income needs will be met;
• applying before the conditional order;
• finalising the divorce without considering financial consequences;
• overlooking tax, mortgage or pension implementation issues; and
• agreeing terms without sufficient financial disclosure.

Price Family Law can provide practical support with:

• organising the agreed financial terms;
• preparing the information required for Form D81;
• checking that figures are consistent;
• preparing an asset and income summary;
• identifying issues requiring specialist advice;
• explaining the application process;
• preparing correspondence and administrative documents;
• coordinating the documents required for submission; and
• responding to procedural questions raised by the court.

Where formal legal drafting or advice on the legal effect of proposed terms is required, a regulated solicitor may be needed.

Consent Order support is available as a One-Off Fixed Fee Service.

The fixed fee will be confirmed after assessing:

• whether terms have already been agreed;
• the number and complexity of the provisions;
• the available financial information;
• whether pensions or property transfers are involved;
• whether further professional drafting or advice is required; and
• the agreed scope of support.

Court fees, pension-provider charges, solicitor drafting fees and other third-party costs are not included unless expressly stated.