In This Post
In this post I'll talk you through everything you need to know about Consent Orders and Clean Break Orders, such as:
- What’s the difference between a Consent Order and a Clean Break Order?
- How do they work, and why do they matter?
- How do I get one, and how much will it cost?
Let’s get to it...
What Is A Consent Order?
A consent order is a written document that sets out in detail how you and your former partner intend to divide <bloglink>your finances<bloglink> after a divorce.
It is basically a contract saying who gets what.
In a consent order (sometimes also called a financial order), you can agree:
- How to divide your financial assets: You can agree <bloglink>what happens with the family home<bloglink> or any other properties you may have, any investments such as stocks or bonds, savings accounts and cash, <bloglink>pensions<bloglink>, jewellery and even pets.
- How to divide your debts: You can decide what to do about any shared mortgages, credit cards or other loans.
- To make ongoing payments: You can agree for one party to make ongoing payment to the other, such as <bloglink>child or spousal support.<bloglink>
- To make a clean break: Most couples also choose to include a “clean break” clause, which means neither of you can make any additional financial claims against the other, once the consent order is finalised.
- To make a prenuptial agreement: <bloglink>A prenuptial agreement is just a type of consent order<bloglink> agreed before you marry.
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Do I Really Need A Consent Order?
Take it from a practising barrister:
Yes!!
You really want to get a consent order in place when you divorce.
There are two main reasons:
- It’s the only way to make your agreement enforceable.
- It protects you from any future claims by your former spouse.
A Consent Order Makes Your Agreement Enforceable
When it comes to divorce, you are agreeing how to divide all the wealth you and your partner own.
It shouldn’t be taken lightly
And frankly, a verbal agreement simply won’t cut it.
Neither, in fact, will a normal written contract.
The courts take it so seriously that only an order approved and stamped by a Judge will be considered legally binding when it comes to divorce.
The benefit of having this binding consent order means that it is enforceable in court. So, if one party fails to live up to the agreement later down the line, the other side can go to Court to have the order enforced. It's also a good idea to get a consent order if you <bloglink>get an annulment<bloglink> rather than a divorce.
A Consent Order Can Prevent Any Future Claims
The other benefit of a consent order is that it can prevent your former partner from being able to make any financial claims against you in the future.
Again, this is something you can only do with a proper consent order, approved by the court.
To prevent any future claims, you simply need to include what’s called a “Clean Break Clause” within your consent order…
What’s The Difference Between A Consent Order And A Clean Break Order?
As discussed above, a consent order is used when you and your partner have financial assets to divide.
You can also include what is called a “Clean Break Clause” within a consent order (often at the final paragraph), which severs any future financial ties between you and your spouse.
But what if you don’t have any assets to divide in the first place?
In this case you use a “Clean Break Order”- which is basically just a clean break clause in a document on its own, with no discussion of dividing your assets.
What Does A Clean Break Order Do?
Whether you include a clean break clause at the end of your consent order (because you have assets to share) or you use clean break order on its own, the effect is the same:
The clean break severs all future financial ties between you and your former spouse.
This is important, because if you don’t get a clean break order or clause approved by the Court, then your former partner may be able to make financial claims against you in the future.
Without a clean break, these potential claims stay ‘live’ forever...
Only a clean break agreement can ensure you and your ex-partner’s finances are completely separated forever.
Do I Really Need A Clean Break Order?
Often people say “But we have no assets to share- do we really need a clean break order?”
But remember, without a clear break your former partner could make a claim against you in 5, 10 or even 20 years’ time.
So, if in the future, you make more money, start a successful business, build up a big pension pot, or even win the lottery (yes really), then your former spouse could come back to haunt you…
Let’s look at a couple of famous case studies that prove the point:
Case Study 1- The Hippie Turned Businessman
When Dale Vince and Kathleen Wyatt divorced they barely had a penny to their name. Perhaps because of this, they chose not to get a clean break order when they went their separate ways.
Mr Vince was a self-described “new age traveler” at the time of the divorce. But some 30 years later, his situation had changed drastically. He’d turned his interest in protecting the environment into a highly successful business venture, and had built up a sustainable energy business worth millions.
His former wife then took him to court, saying she was owed a share of his fortune.
And, because no clean break order had been put in place, the Supreme Court awarded her £300,000 and ordered Mr Dale to pay all her legal fees (another £300,000 odd). This was perhaps modest, given his net worth of over £100 million, but it illustrates the point...
Scrimping out on a simple clean break order can be a costly mistake even decades later.
Case Study 2- The Lottery Winner
The case of Nigel Page and his ex-wife is very similar. They divorced, but neglected to get a clean break order or a consent order.
Then, ten years later, Mr Page won £54 million on the Euro millions lottery.
His ex-wife made a claim against him for £8 million, and they eventually settled out of court for £2 million.
The lack of a clean break order left it open for his ex-wife to make a claim. Had a proper order been in place at the time they divorced, it’s very unlikely she would have gotten a penny.
Ok,
So very few people win the lottery or become self-made millionaires.
But many do end up with more money in the future, than at the time they divorced. Whether it be through building up their pension pot, owning property, or starting a successful business.
Top Tip:
Don’t be penny-wise, but pound foolish!
Invest a little time and money in a getting clean break order, to ensure you fully sever your financial ties after divorce.
Do I Automatically Get a Consent Order As Part Of My Divorce?
Unfortunately, no!
This is a really common misconception.
You see, there are two distinct parts to a divorce:
- The divorce process
And it’s important to realise that these two elements: 1) actually getting divorced, and 2) agreeing how to divide your finances, are two separate processes.
It’s perfectly possible to <bloglink>get divorced<bloglink> without agreeing anything about your finances (although that is really not recommended!).
The two processes can (and usually do) run side by side, and many solicitors and <bloglink>online divorce<bloglink> services will offer a package to complete both parts of your divorce.
How To Agree Your Consent Order
Once you’ve decided you want to get a divorce settlement (highly recommended!), you need to decide how to divide your finances.
There are two main possibilities:
- You and your spouse can agree (with or without help from a third party)
- You can’t agree, and need the court to decide for you
If You And Your Partner Can Agree
Agreeing a financial settlement requires cooperation.
This doesn’t mean you need to remain best friends with your spouse. Even if you can’t bear to be in the same room as each other, it’s perfectly possible to reach an agreement with the help of professionals, such as solicitors or mediators.
So, what are your main options
The DIY Route
There is nothing in law that says you have to use a solicitor or a professional service to help you agree your divorce settlement (aka <bloglink>"Ancillary Relief"<bloglink>).
You can choose to hammer out the details of your divorce settlement between just you and your partner, if you feel capable.
However,
This is realistically only a viable option in the most straightforward cases, where you’re able to fully agree how to share any assets or debts with your partner.
If you are able to agree, great. You can draw up the basis of the agreement yourselves (simply using a word doc, or an online template).
Once you’ve done so, I strongly recommend two final steps:
- Get it professionally reviewed
- Get it professionally drafted
Yes, these steps will cost a bit of money. But it’s worth it’s weight in gold.
The final drafting of a consent order is technical and legalistic, and not something just anyone can do. If it’s going to be accepted by the court, you really need a professional to do the final drafting for you.
I also recommend investing a bit of money to have a professional review of the terms you’ve agreed, to make sure they are fair and reasonable (the court will only approve a consent order that they think is fair).
You can use a <bloglink>solicitor or a specialist online service<bloglink> to review and draft the consent order for you.
Using A Mediator
If you can’t agree between yourselves, an increasingly popular option is to ask a mediator to help you.
<bloglink>Mediation can be a faster<bloglink>, more amicable, and more cost effective way for couples to reach agreement, rather than going to court or using separate lawyers.
Generally, a mediator will meet you both individually first, and then chair a number of joint sessions to help you come to an agreement.
Once you have reached agreement, you can have the consent order reviewed and drafted by a solicitor.
Using Separate Solicitors
Using separate solicitors to come to agreement can be similar to meditation. You both hire your own lawyer, and either attend joint negotiations sessions, or negotiations can be conducted purely via letters and correspondence between your solicitors.
It is obviously more expensive than mediation, as you each need to pay for your own lawyer (rather than a single mediator). But the benefit is that your lawyer acts only for you. Their job is to fight tirelessly for the best outcome for you, and they have a duty to act in your best interests.
However, this comes with the corresponding risk that positions can become entrenched, meaning that having to go to court may become more likely.
Independent Barrister Review
<bloglink>Barristers<bloglink> are specialists experts on the law, and you can ask them for a professional review of your case.
Your solicitors or mediator will draft a document outlining the dispute, and the barrister will produce a written report telling you what the outcome would likely be should your case go before a Judge.
Having a report like this in black and white can be a great way to break a stalemate, without having to actually go to court.
If You And Your Partner Can't Agree
When all else fails, and you simply cannot agree, you will have to ask someone to decide for you.
There are two main methods here:
- Divorce arbitration
- Going to court
Divorce arbitration is a type of divorce resolution that takes place privately (you hire your own arbitrator, who acts like a Judge). It is much quicker and cheaper than going to court, but unlike mediation, with arbitration you are guaranteed an outcome as the arbitrator will come to a binding decision that you both must abide by.
Going to divorce court is far and away the most expensive and time consuming way to resolve your divorce settlement. However, for couples that simply cannot see eye to eye, the only way to resolve the issue is to have the court decide.
If you do go to court, you can expect up to three hearings, which can take an average of <bloglink>12 months or more.<bloglink>
What Can I Include In A Consent Order?
You can make provision for all of your finances and debts within a consent order, including sharing assets immediately, as well as making ongoing payments into the future if needed.
You can agree terms such as:
In a consent order you can also set out a timetable for when payments will be made, or when any assets will be sold or transferred.
Top Tip:
It's also a good idea to include something called a ‘Joint Statement’ within your consent order.
This is basically an explanation of your rationale for what you’ve agreed, and why you both believe it’s fair. This will help the Judge in deciding whether or not to approve your consent order.
Will The Court Approve My Consent Order?
The vast majority of consent orders are approved by the court without any problems.
However, this does not mean it is simply a rubber stamping exercise.
The court will still only approve a consent order if it thinks the terms are fair.
For example, while a simple 50/50 split is often a fair outcome, this might not be the case if one partner is taking on all the parental responsibility and expense.
The law doesn't have a set formula for what constitutes a fair deal- It’s down to the discretion of the Judge.
This is why it’s worth investing some time and money to have your agreement reviewed by a lawyer before you submit it for approval. They’ll be able to tell you whether the court is likely to view your consent order as fair or not.
In addition to fairness, the court must also be satisfied that each partner entered into the agreement with full knowledge of the other side’s finances (ie. there can be no hiding of assets or wealth). You do this via the disclosure process, which we’ll discuss below.
If the Judge decides your consent order is not fair, they may write to you asking for clarification; or they may ask you to attend court to discuss matters; or they may simply reject your consent order (if this happens, you should seek legal advice on how to re-draft the consent order so that it is fair, before re-submitting it).
What Is The Process For Getting A Consent Order?
Remember, getting a consent order is not an automatic part of your divorce.
You need to make a separate consent order application and pay an additional court fee, alongside your divorce application.
Let’s look at the process in a bit more detail...
Step 1: The Disclosure Process
Whether you choose to agree your settlement between yourselves, <bloglink>use a divorce mediator<bloglink>, or go to court, you’ll need to complete the disclosure process before negotiations start.
Proper disclosure gives each partner a clear picture of the other’s finances, so that you can assess whether or not the proposed settlement is fair.
You might think you already know all about your partner’s finances, especially if you've been in a long relationship; or you might think there’s no need to complete disclosure if you and your partner can easily agree to a settlement between yourselves.
However...
It’s important that you still follow the disclosure process, so that you can demonstrate to the court that you’ve come to an agreement with “all the cards on the table”
If you can't show the court that there’s been open and fair disclosure of finances, it’s less likely they will approve your consent order.
There are two main way to complete disclosure:
Form D81 (the "Statement of Information")
This is the quicker way of doing disclosure.
You each jointly complete the <bloglink>D81 Form<bloglink> (aka the “Statement of Information” for a consent order), and should then have a copy beside you for reference when you conduct your negotiations.
Then, when you apply to the court to have your settlement approved, you submit the D81 Form alongside a draft of your proposed consent order.
The D81 Form is relatively straightforward to complete, and is only 6 pages long.
It’s most appropriate where your family finances are not too complex, and you can mostly agree the settlement between yourselves, or perhaps with mediator or solicitor assistance.
Form E (the “Financial Statement”)
The <bloglink>Form E<bloglink> (aka “The Financial Statement”) is much more in-depth (28 pages), and you each complete your own version (rather than jointly).
This is the form you have to use if you are asking the court to resolve your divorce settlement (ie. you can’t agree any other way). It’s also commonly used by many solicitors firms, mediators and arbitrators; so even if you aren’t going through the full court process, it can be a useful form to use if you have complex finances like pensions or investments to consider.
Some solicitors or mediators will have their own spreadsheet for you to use, and they will then complete the Form E for you (you can check out the <bloglink>Form E spreadsheet<bloglink> I use here)
Whether you complete the D81 or the Form E, the kind of information you’ll be asked for includes:
The court will use this information to decide whether or not your proposed settlement is fair.
You don’t have to provide supporting documentation (completing the form is sufficient), though the court may ask to see any particular document later down the line, if they think it’s necessary.
You must be accurate and honest about your assets, and give full and frank disclosure.
The court reminds you of this fact by getting you to sign a “Statement of Truth” at the bottom of the form.
So, make sure you are truthful on the form, as there are serious consequences for lying. In addition, any failure to make full disclosure means the consent order can be “set aside” (ie. disregarded) if this failure is discovered at a later date.
Step 2: Reaching Agreement
After you’ve completed disclosure, you can start the negotiation process via one of the means we discussed earlier (DIY discussions, mediation, solicitor led negotiations, arbitration, or going to court).
Step 3: Drafting Your Consent Order
Once you've agreed what the terms of the settlement will be, your solicitor will draft the consent order (you can also use an online service for this).
In theory, you could write the consent order yourself, but strongly suggest you use a professional. If it’s not worded in the correct legal language the court expects, it’s likely to be rejected.
Top Tip:
If you’re going to court to resolve your dispute, the court will give a judgement on how your finances should be shared. This is technically a court order, not a consent order, but the practical effect is the same.
Step 4: Applying For Court Approval Of Your Consent Order
Once you have the draft of the consent order you need to submit it to the court for approval.
If you’re using a solicitor or an online divorce service, they will do this for you.
If doing it yourself, you need to complete the <bloglink>Form A<bloglink>, which is the application for a consent order. You submit it along with the completed Form D81 “Statement of Information”, and, if you are sharing any pensions, you also need to complete and submit an <bloglink>Annex P1<bloglink> (the “Pension Sharing Annex”).
You should send to the court:
- 3 copies of your draft consent order (a copy signed by you, a copy signed by your partner, and an unsigned copy).
- A cheque for the court fee (£53). Alternatively you can call the court and <bloglink>pay by card<bloglink> over the phone.
The Form A will also ask you to confirm that you at least considered mediation, by attending something called a MIAM (or <bloglink>"Mediation Information and Assessment Meeting"<bloglink>).
Also, make sure you keep a copy of all the documents you submit to the court.
Once the court has received your application, a Judge will read through your draft consent order and your financial disclosure.
The vast majority of the time there is no need for you to attend court, and the Judge will approve your consent order provided it’s been properly drafted and is reasonably fair.
Once approved, it will be stamped and will become legally binding at the point your divorce process is finalised.
The court will send a sealed copy to both you and your ex-partner.
Each party is then responsible for carrying out the commitments they’ve made in the consent order, such as transferring any assets or money to the other partner, transferring or selling a property, or setting up any ongoing payments such as <bloglink>spousal maintenance. <bloglink>
When Can I Apply For A Consent Order?
The earliest you can apply for a consent order to be approved by the court is after you’ve received your Decree Nisi, which marks the midway point in the divorce application process.
Once the order is approved, it won’t become legally binding (ie. effective) until you reach the <bloglink>Decree Absolute stage<bloglink>, which is the final stage of the process, at which point you become legally divorced.
It is also possible to apply for a consent order after your divorce is finalised (ie. after the Decree Absolute is granted), however this comes with a lot of risks as it can affect your entitlement to things like pensions or tax deductions; so it's better to agree the settlement before your divorce is finalised.
How Long Does It Take To Get A Consent Order?
If your consent order is properly drafted and relatively straightforward, the court should theoretically be able to approve it in about 6 to 10 weeks.
However, a lot depends on how busy the court you’re applying to is. Increasing backlogs in the family courts means it’s possible they could take 6 months or more to approve your order. If you’re concerned about how long it might take, you can give your local court a ring and they may be able to tell you how long it is likely to take.
If you are going to court to resolve your dispute, the entire process requires up to 3 hearings which can easily take a year or more.
What Happens If A Consent Order Is Breached?
Once your consent order is approved, it can be enforced in court should either party fail to live up to the terms of the order.
If there is a breach, it’s always worth speaking to the other side first, to try to resolve things informally. There may be a good reason they are unable to comply with the order, such as being made redundant.
If that does not work, then an application can be made to the court to enforce the consent order.
You apply using the <bloglink>Form D11<bloglink> (or if you’re using a solicitor, they will apply for you), and the court will require a hearing to decide the matter. If you are successful, the other party will have to pay your costs of the application and your legal fees.
How Much Does A Consent Order Cost?
The court fee for approving your consent order is £53.
In addition, if you’re using an online divorce service, they usually charge anywhere from £150 to £400 for drafting a consent order.
If you’re using a solicitor to draft your order, prices can range from £600 for a simple consent order with straightforward finances, to £3000+ for a detailed consent order dealing with high value assets or complex features like the division of pensions.
Many solicitors or online divorce services will also offer a fixed fee package to manage your whole divorce process (both getting divorced, and drafting your consent order), but don't assume they are included- always ask.
If you cannot agree, and are going through the full court process to finalise your divorce and settlement, then it’s likely you’ll need a solicitors firm and a barrister to represent you in court. This will increase costs dramatically (often into the tens of thousands). Of course, if a good lawyer can win you more in the settlement than they charge in legal fees, then it can be a great investment.
Funding Your Divorce Negotiations
As you’ve probably realised, seeking legal advice about your divorce settlement really is a good idea.
However, many people struggle to pay the costs of a lawyer upfront
But there are now a new range of specialist lenders who provide funding to help pay for the costs of your divorce.
This specialist funding can help you pay for:
- Mediations sessions
- Solicitor led negotiations
- Arbitration hearings
- Going to divorce court
Specialist funding is rapidly becoming one of the most convenient and cost-effective ways to fund your divorce.
Check out my divorce funding page to learn more:
Neil Johnstone is a barrister and the founder of FundingMyClaim.com. Neil is a barrister with an interest in all forms of civil and family law, and has appeared at all Court levels, up to and including the Court of Appeal.
Neil started this site in response to a common problem he noticed: Clients were unable to pursue deserving cases due to a lack of up-front funds. Neil knew that better access to No-Win-No-Fee representation and legal funding could help bridge the gap, and so founded FundingMyClaim.com; a unique comparison site connecting clients, law firms, and specialist funders.
Now I'd Like to Hear From You
I hope you found this guide on Consent Orders and Clean Break Orders helpful.
Now I'd like to hear what you have to say:
Maybe you're considering using a mediator to help you reach agreement?
Do you plan on using a solicitor, or maybe an online service to draft your agreement?
Either way, let me know by leaving a comment below.