What is a consent order?
Put simply, it is an order made by a judge at the request of both parties, to confirm an agreement they have reached between themselves. In this context it is used to mean an order confirming a financial agreement reached between a couple who are divorcing (or dissolving their civil partnership) which would otherwise be the subject of financial remedy proceedings. It could be an agreement you have reached yourselves, or in mediation, or through solicitors.
Why do we need a consent order?
The main reason for obtaining a consent order, is so that you are both certain that the other is completely committed to the agreement and cannot change their mind later. The secondary reason is that some financial arrangements (particularly relating to pensions) can only be put into effect through a court order.
What points would a consent order cover?
Essentially all of the financial aspects of the agreement you have reached. So that would cover what will happen to your home, and the division of any assets, including pension arrangements. Except to a very limited extent, a consent order cannot cover arrangements for child maintenance/child support.
Can a consent order include our arrangements for our children?
No, the consent order deals only with financial issues. Although there is no reason, in theory, why a judge should not make a separate consent order confirming the arrangements for your children, in practice - unless you are already involved in court proceedings about this - it would be impracticable, and the judge would quite likely decline to make the order.
What is the process?
Essentially the agreement you have reached needs to be rewritten in the format and terminology of a court order. You also have to fill in a document known as a statement of information setting out your financial situation, we can guide you through that but you will have to furnish the relevant information. Then, when you have a decree nisi of divorce, the documents are sent to court for approval by a judge.
Will the judge automatically approve our consent order?
The judge is within his/her rights to withhold approval, but they also recognise that people are free to do what they choose with their money. Agreements reached in mediation are usually approved because the judges assume that they have been thought through very carefully. They also want to encourage people to use mediation rather than the courts. So generally an agreement reached in mediation will be approved without question, providing the documentation is drawn up properly. Agreements presented through solicitors are approved in the vast majority of cases. If the agreement seems very one sided it may be questioned but the judge will usually accept a sensible explanation.
Can we both use the same solicitor?
Technically no, because although you share the goal of obtaining the court order once you have an agreement, the bodies which regulate solicitors say that there is a “conflict of interest” between you. So the same solicitor is not permitted to act for both of you. In practice one of you will be the solicitor’s client, and the solicitor will draw the documentation for that person. Although drawing up the documentation is quite technical, in most cases the finished item is reasonably easy to understand, so the other person may choose not to instruct a solicitor. But that is a matter for them ultimately the solicitor is only answerable to his or her client and the other person would have no comeback against them.
Can we have a consent order if we are not getting divorced?
No, you can only have a consent order in the context of a divorce or dissolution of a civil partnership. If you are not getting divorced you should think about a separation agreement.
Can a consent order be changed at a later date?
No, the point about a consent order is that it is final, so it is important you should think about it carefully before you commit to it. Providing both parties have set out their financial circumstances fully and honestly in the mediation, the order is final and cannot be changed. There have been some exceptions to that in truly unusual situations, for example where one of the parties unexpectedly died very shortly after the order had been agreed. But if you get a consent order you should expect it to be conclusive.
How long does it take to get a consent order?
It varies, but normally we would send you your draft consent order within about a week of you instructing us to go ahead. When both parties are happy with it, it can be sent to the court, but not until there has been a decree nisi of divorce. It then has to wait for approval by a judge – this depends how busy they are at the court office, but at present typical waiting times are about 8 to 10 weeks.
How much does it cost?
We charge you a fixed fee for drawing up a consent order. The amount of the fixed fee depends on the complexity of what you have agreed, and also the value of your assets. We will give you a quote when we have seen your agreement. As a guide, we might charge a couple with fairly straightforward finances, including a house and perhaps some savings, about £350 including VAT. Complicated financial arrangements, or arrangements involving sharing of pensions, would be a little more. You also have to pay a court fee which is presently £50.
But that assumes your agreement is complete and covers everything it needs to cover. We can help you identify problems with your agreement and suggest changes, but we would need to discuss a separate fee for that.
Can we share the cost?
That is up to you. We only issue one bill to the person we draw the documentation for, but if you want to share it, you can.
Does that fee include advice?
No, unless you ask us to, in which case we would charge you a separate fee. Nor will we offer any advice about related issues, such as the tax consequences of the arrangement you have agreed, or how tax could be mitigated, or any financial advice about investments and pension arrangements. If you need advice about those points, and you would have to approach an accountant or financial adviser as appropriate. Nor does the fee include the cost of implementing your arrangement, for example conveyancing charges for transferring properties etc.
How do we start?
Please email me firstname.lastname@example.org. If you have an agreement or memorandum of understanding from a mediator please send me a copy. Include your phone number and I will contact you and give you a quote so you can decide whether or not you want to go ahead.