A consent order can turn an agreed divorce financial settlement into a legally binding court order. Without one, ending your marriage does not automatically prevent future financial claims from, or against, a former spouse.
A clean break is related but different. It concerns the termination of financial obligations or claims between spouses where a suitable settlement permits that result. This guide explains the difference and why the timing and wording of the order matter.
What is a financial consent order?
A financial consent order records agreed arrangements about property, pensions, savings, investments, lump sums and maintenance. You and your partner submit drafted terms for approval by a family court judge, who considers whether the proposed order is fair in light of the disclosed financial circumstances.
An agreement reached in conversation or even recorded in a signed private document is not necessarily equivalent to a court-approved order. The purpose of an order is to provide legal effect and an enforceable framework for the arrangements.
The government’s consent order guidance explains that the draft should be submitted with a statement of information about both parties’ financial circumstances, legally known as form D81.
What is a clean break order?
A clean break aims to end continuing financial claims or maintenance obligations between spouses to the extent that a court order can lawfully do so. It may be appropriate where both people can meet their needs without ongoing support.
Not every settlement can achieve an immediate clean break. There may be continuing spousal maintenance, staged payments, deferred property arrangements or other obligations. Provisions relating to children and the jurisdiction of the CMS require separate analysis.
The question is not simply whether both parties want a clean break, but whether the order can meet their needs fairly and close future claims on appropriately drafted terms.
| Consent order | Clean-break provision |
|---|---|
| Records an agreed financial settlement | Seeks to terminate specified future spousal claims |
| May include maintenance and staged payments | May be immediate or deferred where appropriate |
| Requires judicial approval | Forms part of an appropriate financial order |
When should a consent order be submitted?
A consent order can be requested once the necessary procedural stage has been reached. The court cannot approve it before the conditional divorce order. It is usually sensible to address finances before applying for the final divorce order, because timing can affect pensions and other entitlements.
The order itself ordinarily takes effect only once the final divorce order has been made. Couples should seek advice before transferring pension rights or carrying out complex property arrangements prematurely.
The court fee for the consent order application is currently £62, separate from legal drafting fees.
Why does the court ask for Form D81?
Form D81 provides a statement of the parties’ financial position and helps the judge decide whether an agreed order is fair. It requires meaningful information about assets, liabilities, income and relevant circumstances.
A consent order is not a way to avoid accurate disclosure. An arrangement made without essential financial information may later be challenged in particular circumstances, and the court may refuse to approve a draft that does not appear fair.
People with businesses, pensions, inherited assets or a substantial difference in income should consider whether specialist valuations or additional advice are needed. See the current D81 form and guidance.
Finality requires careful wording
Our perspective
The objective is not just to obtain an order as quickly as possible. A provision that seems clear to the people signing it may leave disputes over pension implementation, timing of a property sale or maintenance variations. The legal drafting needs to reflect how the agreement will work in practice.
When is a solicitor especially useful?
Solicitor involvement is valuable where pensions are being shared, there is a property transfer or mortgage issue, one spouse will remain financially dependent or there are overseas assets and business interests. A solicitor can identify possible claims before proposed terms are placed before the court.
Some people agree a settlement in mediation and then ask separate solicitors to review and formalise it. That can be proportionate, particularly where both parties have already provided full financial disclosure.
Our family law solicitors can review a proposed settlement, advise on whether a clean break is realistic and draft or negotiate financial consent orders. Contact the team to discuss the necessary next steps.
Frequently asked questions
Is a divorce final order the same as a financial consent order?
No. The final divorce order ends the marriage; a financial consent order addresses the financial settlement.
Is a clean break always appropriate?
No. The fairness of ending financial obligations depends on each person’s needs, resources and circumstances.
Can a consent order be made after divorce?
An application may still be possible after the final divorce order, but delay can create important consequences, particularly relating to pensions and potential claims.
We’re here to help.
About the Author
Leave a comment Your email address will not be published.