What is a Consent Order?
Consent orders are a mechanism for making an informal agreement legally binding and enforceable in family court.
Quite often when married couples separate they reach an informal agreement about child care and finances. It is better if you reach an formal agreement which is written down and clearly presented.
If you can, agree with your partner how to work out:
- arrangements for looking after any children
- child maintenance payments for any children
- division of your money and property
It is important to note that whilst a consent order formalises any financial agreement (property, pensions), you should include a clean break clause that specifically severs all future financial ties and prevents ex-partners from making future financial claims against each other.
You can then present this agreement to a solicitor and instruct them to file the order with the court, (consider using a solicitor who deals in collaborative law to make the process non-combative)
If you are unable to agree with you ex-partner about making arrangements for your children and property you can apply to the court for a Contested Financial Order
Consent Order for Child Arrangements
When you start to prepare for a consent order, it is important to be comprehensive and you should consider the following:
- who the children will live with and the schedule for this.
- who the children will have contact with and the schedule for this.
- scope for flexibility within the arrangements and the schedule for this.
- contact: handover arrangements, who bears the cost of travel for handover, contact book, what to do in the event that that either party is delayed or unable to attend.
- arrangements in relation to travelling abroad and what are the conditions of travel.
This informal agreement will need to be signed and dated and attached to a C100 court form.
There is a question which asks ”Are you applying for an order to formalise an agreement (consent order)?” on Page 1 of the C100 form under ”Additional Information Required”. Tick the box marked Yes
The draft informal agreement must be attached to the C100 form and submitted to the local family court.
There is a £263 fee to make the application but an EX160 (Fee Exemption Form) can be submitted if you are in receipt of income-based benefits. You do not need to attend a MIAM to apply for a consent order.
Financial Remedy Consent Order
A Financial Remedy Consent Order is the document that will record the financial agreements and arrangements surrounding the breakdown of your marriage or civil partnership, which once approved by the Court, becomes a fully binding and enforceable Court Order.
A Financial Remedy Consent Order often makes provision for future events and should deal with every financial element arising from your marriage from, for example, who will be keeping what furniture to when the house will be sold and how the net proceeds of sale will be divided.
A Financial Remedy Consent Order also (if appropriate) severs you financially from your spouse or civil partner, and prevents any future claims, or in the event of death, prevents claims against your estate. The order needs to be prepared and implemented alongside a Divorce, as your Divorce will only dissolve your marriage but will not financially sever you from your spouse or civil partner.
A Financial Remedy Consent Order cannot be submitted to the Court until Decree Nisi/Conditional Order has been pronounced in your Divorce, and so running both the Divorce and finances alongside each other is usually the most sensible and pragmatic way forward.
When a Financial Remedy Consent Order is submitted to the Court, a Statement of Information is also prepared at the same time. A Statement of Information provides the Judge with a snapshot of both parties’ current financial positions. It is used by the Judge to assess whether the proposed terms of the Financial Remedy Consent Order are broadly fair. The Statement of Information confirms your respective capital positions, any liabilities that you have, your pensions, and your income positions, amongst other things.
When the Financial Remedy Consent Order is submitted to the Court, it is not simply a rubber-stamping process. The Judge will need to ensure that the terms of any agreed Financial Remedy Consent Order are fair, although the discretion that the Family Court has in this respect is very wide.
Does a solicitor to need to draft the informal agreement?
There is no legal requirement to have a solicitor create the informal agreement, but a solicitor will make the agreement more comprehensive and be able to complete the application to the court. It may be more cost effective to draft the agreement before you instruct a solicitor, you may also like to consider a solicitor who has signed up the the Resolution code of practice. If you do not have a solicitor you can attach a Cafcass Parenting Plan as evidence of your informal agreement, a family mediator may be able to assist with drafting an informal agreement, or you can create their own.
What to expect from the court process?
Applying for a consent order is generally straightforward The court will ensure that the agreement reached is in the best interests of both parties and of the child/ren involved. If an agreement is deemed to be not in the best interests of both parties and the child/ren, it will not be made legally binding. In most cases, both parties will be invited to attend a hearing at which the court will confirm that the agreement was reached by consent and determine whether any safeguarding checks are required.