Why it is so important to get a consent order right on divorce

Divorcing in England and Wales involves a myriad of legal and financial considerations, and one crucial element is the consent order. Ensuring your consent order is properly drafted is vital for securing a fair and lasting financial settlement. But why is it so important to get it right? Let’s explore the significance of a consent order in divorce proceedings and the potential implications of overlooking its importance.

Understanding Consent Orders

A consent order is a legally binding document that finalises the financial arrangements between divorcing parties. It details how assets, property and liabilities will be divided and can also address arrangements like spousal maintenance. Once approved by the court, it prevents either party from making future financial claims against the other save for in exceptional circumstances or limited orders that can be varied, thereby providing certainty and closure.

The Importance of Getting It Right

1. Legal Finality and Protection: A correctly drafted consent order provides conclusive legal protection. Without it, ex-spouses may have the right to make future claims on each other’s assets, even years after the divorce is finalised. This can leave one party vulnerable to financial claims down the line, disrupting financial planning and security.

2. Clarity and Certainty: A well-crafted consent order clearly outlines the division of assets and any ongoing financial obligations, such as maintenance. This clarity helps prevent misunderstandings or disputes after the divorce, providing both parties with a roadmap for their financial futures.

3. Tailored Settlements: Getting a consent order right ensures that it reflects the unique circumstances and needs of both parties. Every relationship and financial situation is different, and a generic approach can lead to unfairness or oversight. A detailed consent order addresses the specific assets and liabilities involved, offering a customised settlement that works for both parties.

4. Enforceability: A court-approved consent order is enforceable by law. If one party fails to comply with the terms, the other can seek enforcement through the courts under the ‘liberty to apply’ clause. This legal backing is crucial for ensuring adherence to agreed terms, offering peace of mind that commitments will be honored.

5. Avoiding Future Litigation: By clearly establishing financial arrangements, a thorough consent order reduces the potential for future litigation. Unresolved financial ties or vague terms can lead to disputes, resulting in additional legal costs and emotional stress. A comprehensive consent order minimises these risks by setting defined boundaries and expectations.

Potential Pitfalls of Neglecting a Proper Consent Order

– Future Financial Claims: Without a consent order, an ex-spouse could seek additional financial settlement if circumstances change, such as an increase in wealth or inheritance. A clean break can be vital.

– Ambiguity and Dispute: An incomplete or poorly drafted order can lead to differing interpretations and subsequent disputes, requiring further legal intervention.

– Missed Assets or Obligations: Failure to include all pertinent financial matters might result in overlooked assets or obligations, leading to an unbalanced settlement and an application to set aside the consent order on the basis of material non-disclosure.

In English and Welsh divorce proceedings, the significance of a well-drafted consent order cannot be overstated. It provides legal certainty, ensures fairness and protects both parties from future claims or disputes. Given the complexity and long-term implications of financial settlements, consulting with a legal professional is essential for navigating this process effectively. A solicitor can offer invaluable expertise, ensuring your consent order covers all necessary aspects and grants you the financial security needed to embark on a new chapter confidently.

This blog was prepared by Alexander JLO’s senior partner, Peter Johnson on the 15th January 2025 and is correct at the time of publication. With decades of experience in almost all areas of law Peter is happy to assist with any legal issue that you have. He is widely regarded as one of the capital’s leading divorce lawyers. His profile on the independent Review Solicitor website can be found Here