Consent orders

Upon the break up of a marriage or civil partnership, a couple is encouraged to reach their own agreement in relation to the division of their assets. Such an agreement can be formalised through use of a consent order, which must be approved by the court before it is legally binding.

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What is a consent order?

A consent order is a type of financial agreement that deals with what happens to your assets during your divorce or the dissolution of your civil partnership. It is very similar to a Separation agreement, however, the difference is that a consent order can be sent to court, where a judge is asked to approve it. Once the consent order is signed and approved by the judge, it is legally binding on both individuals.

What is included in a consent order?

Property

Both spouses must agree what will become of the matrimonial home, eg whether it will be sold or left to the spouse in custody of the children (where relevant). You might also consider whether the other spouse will begin or continue to make mortgage payments.

Assets

You will need to determine how assets such as shares, insurance policies or a family business will be distributed upon divorce.

Personal property

Personal property includes things such as furniture and fine china. Generally, this involves each party taking ownership of their own goods.

Pensions

Couples making a break in retirement need to decide whether they’ll pursue pension sharing or perhaps offset their funds against other assets.

Maintenance

The couple needs to decide whether one spouse will pay the other maintenance. This is particularly relevant where children are concerned (i.e. it is usually the parent with child custody who is deserving of maintenance). You must also agree when such payments can be completed, eg upon death, or when the child reaches 17.

Child maintenance

The Child Support Agency generally determines child maintenance, however, the courts can also order maintenance.

Pets

Where relevant, you will need to determine who takes ownership of the family pet.

What is a clean break?

A clean break is a clause in a consent order which dismisses rights to make certain types of claims arising out of your marriage or civil partnership.

There are two types:

1) A full clean breakdismisses future maintenance and capital claims; and
2) A capital only clean breakdismisses future capital claims only. This tends to be used where they’ll be ongoing spousal maintenance.

It can mean dismissing future claims either during your lifetimes, after your deaths or both, and can be included in the order for just one of you or both. A clean break is only included once you have agreed how to divide your assets (or have already divided them and simply want to safeguard against future claims). Neither party will have a claim on the other spouse's assets after they die.

Can't I just have a separation agreement instead?

If you have a financial agreement, but do not want to send it to the court to be approved, you can still record the agreement in a Separation agreement. However, only a judge can order a “clean break”, which prevents either of the spouses from making future claims against the other.

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