When it comes to divorce, there are very few couples who won’t have something that is jointly owned and needs dividing up, whether that is property, a car, savings, shares or claims on a pension. Andrew Stout, partner and family lawyer at Tallents Solicitors in Newark, explains how consent orders can offer divorcing couples a clean break and a fresh start.
Cuts to legal aid in divorce proceedings during 2013 have meant many divorcing couples try to ‘DIY divorce’ in order to save money but if specific financial matters are not legally settled at the time of divorce, then it is possible for either spouse to make a claim on the other in the future.
Anything of value should be protected, be that property, savings or a pension and a court-approved consent order will ensure that both parties have agreed to the contents.
But a consent order cannot be appealed or set aside, so it’s vitally important for couples to seek legal advice, even in seemingly simple divorce cases, to ensure that they don’t end up agreeing to a consent order that they did not fully understand but which may have far-reaching consequences.
A consent order can relate to one specific area or include a combination of the following:
Clean break only – this order dismisses both spouses’ rights to make any future claims against each other arising out of the marriage. For example, future claims for maintenance or a share of an eventual pension. This order does not contain any other provisions, such as property transfer, maintenance or pension splitting. This order also requires the complete and full cooperation of both parties.
Standard consent order – this order will include specific details about property. For example, whether it is to be sold and how the proceeds from the sale will be split.
Pension sharing order – this order will focus on how any accrued pensions will be split between spouses. It can be difficult to find a fair way to divide a pension, especially if one partner has always worked and the other has stayed at home to bring up a family. In these complicated situations, experienced legal advice is vital to ensure a fair and even division of the pension.
It is wise to have a consent order written by a solicitor, or barrister, authorised to give family law advice in England and Wales. The order also has to be approved in court by a judge and if the judge is not satisfied with the correct completion of the order they will reject it, thereby delaying the divorce.
It is possible to divorce without any consent orders or financial agreements in place but couples are strongly advised against this. Rights against a property or to claim maintenance do not diminish over time so a former spouse can still bring a claim for financial provision years after the divorce has been granted. Claims can also be made against a former spouse’s estate if there are no financial orders in place.
Anyone seeking a divorce should consult a solicitor to fully understand their legal and financial situation, both now and in the future. At an emotional time, it can be hard to think beyond the present and into the future but a solicitor will help you do this. A consent order will give both couples the certainty that the divorce and everything else has been dealt with on a full and final basis.