MONEY & FINANCIAL SETTLEMENTS
Consent Orders
About Consent Orders
A consent order is the court order that turns a financial agreement into a binding settlement when a marriage or civil partnership ends. A judge can normally make one only once the conditional order has been granted, and will approve your terms only if they appear fair on the financial information you both give in the statement of information. We advise on the agreement, draft the order and deal with the court.
Who this is for
- Couples who have agreed how to divide the home, savings, pensions and income and want it made binding
- People who reached agreement in mediation, in solicitor negotiations or at a private financial dispute resolution appointment
- Anyone with a conditional order who wants the money side settled before the final order is made
- Former partners who signed a separation agreement and now want a court order behind it
How RakLAW helps
- Advise on whether the agreed terms sit within the range a judge is likely to approve under the section 25 factors
- Draft the order from the standard financial order templates, with the clean break, pension and costs terms you need
- Prepare the statement of information in Form D81, normally as one joint form, and the reasons for the division
- File the application with the signed draft order and answer any question the judge raises
- Serve the pension provider and deal with its response where the order shares or attaches a pension
- Time the application so the order is made after the conditional order and takes effect on the final order
What a Consent Order Does
An agreement about money and property is not a court order. To make it binding you must draft a consent order and ask the court to approve it; without that order the court cannot enforce what you agreed. It records how you divide pensions, property, savings and investments, and can cover maintenance for a former partner or children.
Section 33A of the Matrimonial Causes Act 1973, and paragraph 66 of Schedule 5 to the Civil Partnership Act 2004 for civil partners, let the court make the order in your agreed terms on the information the rules require, unless it has reason to think there are other circumstances it ought to inquire into.
A judge approves the order if they think it is fair, and can ask you to change it. It is the order, not the agreement, that ends the claims you have against each other, so a separation agreement is a step towards a consent order, not a substitute. What counts as fair is covered on our financial settlement on divorce page.
When the Court Can Approve a Consent Order
A divorce order is in the first instance a conditional order, and Form D81 records the consequence: without a conditional order, a nullity order or a judicial separation order the court cannot make a consent order, apart from the narrow exceptions the form lists. See our conditional order and final order page.
After the conditional order the court can make the financial order then or later, under sections 23, 24, 24A and 24B of the 1973 Act, but an order in favour of either of you does not take effect until the divorce or dissolution order is made final. GOV.UK advises applying before the final order: applying later can have financial consequences, particularly for pensions. Under section 28(3) a party who remarries or forms a civil partnership after the marriage ends cannot then apply for financial provision or property adjustment in their own favour, and paragraph 48 of the same Schedule does the same after a dissolution.
You do not have to attend a mediation information and assessment meeting: Practice Direction 3A takes consent order proceedings out of the MIAM requirement, unlike financial remedy proceedings. The judge still measures the terms against section 25, weighing all the circumstances, with first consideration to the welfare of any child under 18, and the section 25A duty to consider ending the obligations between you.
What a Consent Order Can Include
The court's powers set what the order can contain:
- periodical payments and lump sums under section 23, including provision for a child of the family
- transfer or settlement of property under section 24, most often the family home, and an order for sale under section 24A
- a pension sharing order under section 24B, with the annex the rules require
- a clean break, dismissing each of your claims with a direction under section 25A(3) against each of you, so neither can apply again for periodical payments
Maintenance for a former partner can run for a fixed term, and the court can direct under section 28(1A) that it cannot be extended: see spousal maintenance. Child maintenance is different: section 8 of the Child Support Act 1991 stops the court making an order where the Child Maintenance Service has jurisdiction, and the Child Maintenance (Written Agreements) Order 1993 allows one in the same terms as a written agreement between you.
Where a pension is shared or attached the scheme must be served, and a consent order containing a pension attachment order cannot be made until either the pension provider has raised no objection within 21 days of being served with the application or the court has considered the objection it made. Where the order shares a pension and the scheme has not been served, the party with the pension must obtain its Section C information and send it to the other party.
The Statement of Information and Common Problems
Rule 9.26 of the Family Procedure Rules sets out what goes in: two copies of the draft order in the agreed terms, one endorsed with a statement signed by the respondent to show agreement, which solicitors on record may sign, and a statement of information from each party, Form D81, normally one joint form signed by both.
Form D81 asks for the dates of the marriage, separation and conditional order, the dates of birth of the parties and of any child of the family under 18 or otherwise dependent, each party's capital and net monthly income, the main reasons for the division, and whether either of you intends to remarry or cohabit. Both of you sign a statement of truth, and disclosure must stay full and honest until the financial order is made, including any material change.
Common problems:
- figures that do not match the draft order, or a division with no explanation of why it is fair
- a clean break with nothing said about how the person giving up maintenance will manage
- incomplete disclosure, which can lead to the order being set aside for fraud or material non-disclosure; limited types of mistake and a later unforeseeable event that undermines the basis of the order are separate grounds
How the Consent Order Process Works
- We check disclosure is complete, then advise whether the agreed terms are likely to be approved.
- We draft the order from the standard templates, covering the home, savings, pensions, maintenance, any clean break and costs.
- Both sides sign the draft, and a party giving an undertaking signs as well as their solicitor.
- We prepare the statement of information, usually one joint Form D81, and you each sign the statement of truth.
- One of you files Form A, the notice of application for a financial order, with the signed draft and the statement of information, and pays the court fee. Where the applicant is legally represented, or both of you are, and the application is for a consent order only in the family court, Practice Direction 41B requires it to go through the online portal; people acting for themselves post their documents to the address GOV.UK gives for their case.
- A judge considers it, normally without a hearing, and neither of you needs to attend unless the court directs otherwise. The judge may approve it, ask a question or ask for a change.
- Once sealed, the order takes effect when the divorce or dissolution order is made final, and a pension sharing order, which cannot take effect until seven days after the time for appealing has ended, then goes to the scheme. If someone does not do what the order says, see enforcement of financial orders.
When Legal Advice Is Especially Important
Advice matters most where:
- a pension is a large part of what you hold, or the agreement offsets a pension against capital
- you are unsure whether to end maintenance now or keep it running
- the home is to be kept and sold later, or transferred subject to a mortgage the lender must agree to
- the figures you have been given do not add up, or documents are missing
- circumstances change before the order is approved, or afterwards: see variation of financial orders
Agreements reached through mediation and other out of court options still need turning into an order, and a mediator cannot advise you whether the outcome is fair. A prenuptial or postnuptial agreement must be disclosed in Form D81.
If you are in immediate danger call 999; the National Domestic Abuse Helpline is 0808 2000 247.
How RakLAW Solicitors Can Help
We prepare consent orders as part of the money and financial settlement work we do from 42 Shad Thames in Southwark, near Tower Bridge. We will say honestly whether an agreement is likely to be approved as it stands, and draft it in the form the court expects, with the statement of information it needs.
We also act where the other side has a solicitor and you do not, or where agreement came before the divorce or dissolution finished. RakLAW does not offer legal aid. Our charges are on the family law pricing page, the first 15 minute consultation is free, and you can call 0203 345 2000 or book an appointment.
Frequently asked questions
Do we need a consent order if we have already agreed everything?
Yes, if you want the agreement to be binding and enforceable. GOV.UK is clear that without a court order the court cannot enforce what you agreed. Until claims are dismissed by an order, either of you could bring them later.
Can we apply for a consent order before the conditional order?
Not for the main financial order. The court cannot make a consent order dividing capital, property or pensions until the conditional order, the nullity order or the judicial separation order has been granted, and Form D81 asks for that date. The form sets out narrow exceptions: interim maintenance, a final order varying an existing periodical payments order and a final order for child maintenance. You can negotiate and draft the rest of the order before then, ready to file.
When does a consent order take effect?
For the terms in favour of either of you, when the divorce or dissolution order is made final. Periodical payments and lump sums in your favour, property adjustment orders, orders for sale and pension sharing orders are all made subject to that, so the order exists but those terms are not yet operative. Periodical payments and lump sums for a child of the family are not caught by that bar. A pension sharing order also cannot take effect earlier than seven days after the time for appealing has ended.
Will a judge simply approve what we have agreed?
Not automatically. The court may make the order in your agreed terms on the information you file, unless it has reason to think there are other circumstances it ought to inquire into. A judge approves the order if they think it is fair and can ask you to change it.
Do we have to go to court for a consent order?
Usually not. Under rule 9.26 of the Family Procedure Rules neither of you needs to attend the hearing of an application for a consent order unless the court directs otherwise. Where you do attend, the court can dispense with the statement of information and give directions instead.
What is Form D81 and do we each have to complete one?
It is the statement of information that shows the judge your capital, income and circumstances. Each party has to file one, but the form encourages a single joint version signed by both of you, and separate forms are for where there is a good reason.
Can a consent order include child maintenance?
It can, within limits. The court cannot make a maintenance order where the Child Maintenance Service has jurisdiction, except in defined cases which include an order in the same terms as a written agreement between you. Either parent can ask the service for a calculation once that order has been in force for a year, which our child maintenance page explains.
Can a consent order be changed later?
Maintenance and some other orders can be varied or discharged under section 31 of the Matrimonial Causes Act 1973, and the court looks at all the circumstances including any change since the order. Lump sum and property adjustment orders are not variable in the same way, which is why the drafting matters.
Can a consent order be set aside?
It can, in limited circumstances. An order made by consent can be set aside in whole or in part, and the recognised grounds include fraud, material non-disclosure, certain limited types of mistake and a later unforeseen event that undermines the basis of the order. Where an error by the court is alleged, an appeal is the route instead.
Do we need a MIAM before applying for a consent order?
No. Practice Direction 3A takes proceedings for a consent order out of the mediation information and assessment meeting requirement. A MIAM is normally needed before applying for a contested financial order.
What does a consent order cost?
There is a court fee for the application. The current figure is in the list of fees for civil and family court cases (EX50), linked from the GOV.UK court fees page. Help with Fees may reduce or remove it if you are on a low income or receiving certain benefits. Our own charges are on our family law fees page.
Can we still get a consent order after the final order?
Yes, the court can make a financial order at any time after the divorce order. GOV.UK notes that applying after the final order can have financial consequences, particularly for pensions, and remarrying or forming a civil partnership after the marriage or partnership ends bars that party from applying for financial provision or property adjustment in their own favour.
Speak to a RakLAW Solicitor
Book a confidential consultation with our family law team. We will talk through your situation, explain your options, and set out the practical next steps.
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