Financial Consent Order Solicitors.

We will draft your consent order based on the agreement we help you to negotiate with your former partner. A consent order includes three main sections:

• Recitals – the agreements reached between you and your former partner
• Undertakings – commitments made to the court not to break specific promises
• Orders – the detailed settlements relating to the financial assets and property which have been agreed

If the terms of the consent order are straightforward, the court will normally process the application within four to six weeks, depending on the court and its workload. If the agreement is recognised as fair and reasonable, it can be approved without the court needing to speak to either party.

At this stage, if the judge believes the agreement is unfair, or that there are issues which need to be addressed, further information might be requested. If the court still cannot approve the agreement, a hearing may be required.

We have a huge amount of experience drafting consent orders and will negotiate the terms on your behalf. The court will be interested in the length of your relationship, the assets in question, the health and earning capacity of each partner and the needs of any children involved. The reasonable expectations of each party as to their ongoing standard of living will also be considered.

We understand the expectations of the court in relation to the fairness of financial settlements and will advise you accordingly. Our goal is to achieve the best settlement for you with the minimum stress; where possible, we will look to avoid a court hearing and facilitate an amicable agreement.

A “clean break” means that neither partner can make any further claims against each other in future. A consent order means a financial order with settlement terms that have been agreed, rather than imposed by a judge following court proceedings. A clean break order can form part of a consent order, but it is not the same thing. It is important to understand the difference: a consent order will not necessarily end the financial relationship you have with your partner and will not ensure that further claims cannot be made, unless it includes a clean break order. Without a clean break order, it is possible for your former partner to apply for the terms of your consent order to be altered.

Well known cases such as that of Dale Vince, whose former partner successfully claimed against him following a great increase in wealth 20 years after their divorce, highlight the value of a clean break order.

A clean break is most appropriate where the separating partners have no assets to split and have no need for an on-going financial relationship. Often though, the situation is more complicated than that. A clean break is not possible if maintenance is to be paid from one partner to the other to help balance out incomes or to support any children of the relationship.

A clean break is also not appropriate when the financial circumstances of one or both partners is uncertain. If there are plans to develop or sell off a family business or significant asset, or to develop a property, it might be necessary to leave the settlement open; if your employment situation is uncertain, it might also be in your interests to avoid a clean break order.

It is possible to agree a deferred clean break to come into effect at a specified (or unspecified) time in the future. A binding order can be made for a clean break to occur once certain conditions have been satisfied (the sale of a business or property, for example), or an agreement could be reached at some unknown future point when you and your former partner are ready to end your on-going financial relationship.

Financial orders are intended to be binding and final, so there needs to be special circumstances for a judge to allow changes to be made. The impact of the appeal is also relevant – the court will consider the proportionality of the appeal and whether it will make a material difference to your circumstances compared to the costs of the appeal.

Examples of circumstances in which an order could be challenged are:

• Non-disclosure of relevant facts – this can include information about financial or personal circumstances. For example, not disclosing a job offer which includes a significant increase in salary, or an intention to marry again, could both materially affect the agreement.
• Fraud and misrepresentation – this usually involves the intentional, or unintentional, undervaluation of assets which has a significant impact on the agreement.
• Undue influence – this is relevant if one partner can show that they were forced or pressurised into making the initial agreement.
• Significant subsequent events – it is possible to challenge an order if a subsequent event occurs which invalidates the agreement. The following requirements must be met to make use of this ground:
  • The events took place since the order was made;
  • The events invalidate the basis on which the agreement was made;
  • The events are so significant that it is very likely the appeal will succeed;
  • The events took place within a year of the order being made;
  • The appeal against the order was made promptly; and
  • The appeal does not negatively impact an innocent third party with an interest in any asset or assets involved in the appeal.

A financial order is a legally binding document, so if one party to the agreement fails to abide by the terms of the order, the other party can take action to enforce it. If it is found that a breach has occurred, the court will require the party responsible to satisfy the terms of the order, as well as paying the costs of the proceedings.

When considering whether a breach has occurred, the court will take all the circumstances into account. For example, sometimes a party can fail to satisfy their obligations under the order due to unforeseen circumstances which were beyond their control, such as unexpectedly losing their job. In such situations, the court may make an order allowing that party to stop payments until they find a new job.

If there is no valid reason for the failure to comply with the terms of the order, the court can impose penalties and enforce payment of outstanding monies.

• Lump sum payments – the court can grant you a charge over property owned by your former partner, allowing you to insist on the sale of that property if you do not receive the money owed. Similarly, the court can grant a third-party debt order over money owed to your former partner by a third party, meaning that money is paid directly to you. It is also possible to request that the court orders your former partner’s bank to release money held in a bank account to you in satisfaction of the amount owed.
• Sale of the family home – it is common for the sale of the family home to be part of a financial order; it is also common for the person living in the property to delay or refuse to cooperate with the sale. In these circumstances, the court can order that you manage the sale alone or that your partner leaves the property, or the court may agree to sign the sale papers on behalf of your former partner.
• Maintenance payments – the court may grant an attachment of earnings order if your former partner is in paid employment and is failing to pay agreed maintenance. If your former partner is self-employed, other options are available, including bankruptcy proceedings. It is important to act promptly if your former partner fails to make maintenance payments, as usually the court will only order the payment of arrears under 12 months old.

The court will usually add the costs of enforcement proceedings to the money you are owed, so that your former partner will reimburse you for those costs.