Getting divorced, and deciding upon the division of marital assets, doesn’t need to be contentious. Once the Divorce, Dissolution and Separation Act 2020 comes into force on 6 April 2022, and provided you and your ex agree, a joint application can be made for a divorce order to officially bring your marriage to an end. You can also agree a draft consent order as to how your finances are to be split, to be put before the court for approval.

For thousands of separated couples in England and Wales, this will mean that the entire process of ending their marriage, and dividing any matrimonial property, can be dealt with on both a joint and amicable basis. The mere fact that you no longer want to live together as husband and wife doesn’t mean that this process should be acrimonious. On the contrary, minimising conflict can often be in everyone’s best interests, especially for any children.

Below we look at how financial consent orders work in practice, both for married couples wanting to get divorced, as well as for couples looking to dissolve their civil partnership.

What is a financial consent order?

A financial consent order is an agreement used by parties to a divorce, or dissolution of a civil partnership, who wish to settle their matrimonial or partnership finances amicably.

By agreeing a consent order, the parties are able to retain control over who gets what, typically without any intervention by the court. Still, a draft order will need to be formally approved by a judge, so that the court can satisfy itself that the financial provision made for either party is fair, and that there hasn't been any undue pressure placed on the more disadvantaged spouse.

Having the order signed off by a judge will make your agreement legally binding, ensuring that either party can enforce its’ terms in the event of non-compliance. This will also prevent any further financial claim by you or your former spouse. This means that even where a financial agreement has been reached prior to applying to get divorced, or where there are no matrimonial assets to be divided up, a clean-break order should still be put before the court to ensure that all financial ties are severed between you and your ex once the divorce is finalised.

How is a financial consent order approved?

To obtain a consent order, first and foremost, both you and your ex must reach an agreement as to how your finances will be split. This is often best done with the help of solicitors acting for each party, helping you each to explore what’s fair in all the circumstances. It’s also best to seek expert help when it comes to drafting an order, even where agreement has already been reached, as the order must be carefully phrased in certain legal terms.

The order will need to set out in detail the agreement between the parties as to how the marital home, and any other matrimonial assets, will be dealt with, together with the mechanisms and timings for the order to be implemented. For instance, a financial consent order may specify when the family home will be sold and how the net proceeds will be split.

An application must then be made to the court for the terms of the draft financial consent order to be approved, providing a statement of the parties’ financial information in support. Needless to say, this statement must contain sufficient information upon which the court can make an assessment of what’s fair. It must also contain full and frank disclosure, as any new information that comes to light at a later date could provide any disadvantaged party with a basis upon which to apply to have the order set aside.

Legal disclaimer

The matters contained herein are intended to be for general information purposes only. This blog does not constitute legal advice, nor is it a complete or authoritative statement of the law in England and Wales and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its’ accuracy, and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should always be sought.