Many couples manage to reach an agreement on how their finances should be divided when they divorce, and a consent order is part of the process of concluding financial arrangements. But can you draw up your own consent order, or do you need a solicitor? We explore the pros and cons of drafting your own.
Many couples manage to reach an agreement on how their finances should be divided when they divorce, and a consent order is part of the process of concluding financial arrangements. But can you draw up your own consent order, or do you need a solicitor? We explore the pros and cons of drafting your own.
If you have a family law issue and require legal advice to understand your options, contact specialist divorce solicitor Jemma Slavin of Stowe Family Law. Regional Director at this well-respected specialist family law firm, she is committed to offering a bespoke service to her clients which focuses on their specific needs and objectives.
Can we draw up our own consent order?
A consent order is a document that details the financial agreement reached by the parties involved in a divorce. It is only legally binding, and its terms capable of being enforced, once a judge has approved it. Without a judge approved consent order either party could make a financial claim against the other in the future.
There are risks to drawing up your own consent order. Vital terms could be missed off, such as a clean break clause preventing future claims, or clauses included that are unenforceable such as fixing child maintenance payments for more than 12 months. In addition, the judge may not approve it because both parties needs are not met by the agreed division, or the consent order is deemed unfair.
What are the pros of using a solicitor for a consent order?
Here is our non-exhaustive list of the advantages of using a solicitor for drafting a consent order:
- Although opting for a do-it-yourself consent order may initially save on legal fees, the unintended consequences can cost a lot more in the future
- A solicitor can ensure the consent order includes details on the fair division of property, savings, pensions, and maintenance agreements and is correctly drafted
- Settling your finances and preventing future claims can only be done by applying for a consent order and seeking court approval. The only real way to ensure this happens is to use a solicitor
- Using a solicitor to draft the consent order ensures both parties engage in full and frank disclosure and that they both receive a fair split of the matrimonial assets
- A properly drafted consent order provides legal closure, preventing any future claims and gives you peace of mind
- A solicitor will ensure that neither party is hiding any assets that should be included in the settlement
- It is more likely that a solicitor drafted consent order will receive approval from the judge as opposed to one that is drawn up by a couple themselves
- A solicitor can discuss the options, tailoring them to your financial situation and that of any children
- In order to agree the terms of the consent order, both parties must agree in order for it to be valid. If one party does not consent, negotiations may be required, so having a solicitor in place will shorten any potential delays.
What are the cons of drawing up your own consent order?
The court can disagree with the terms of a consent order and reject it if they believe the terms are unfair. This is a commonplace occurrence when individuals draw up the terms of their own consent order without the help of a legal professional. Here are some common problems:
- Using templates – many people drafting their own consent order resort to using online templates with pre-loaded/suggested clauses. However, this often misses essential financial details specifically relating to the couple themselves and results in the document inaccurately reflecting the agreement between the parties.
- Full and frank disclosure of both party’s respective financial position was not given – in order for a consent order to be considered fair and reasonable, full disclosure of all financial assets and liabilities is a mandatory part of the consent order process. This includes providing information on bank accounts, investments, properties, and any potential inheritance. Any undisclosed or hidden assets can lead to the order being challenged later.
- Rushing the agreement without fully considering the long-term implications, particularly regarding pensions and ongoing support can result in mistakes being made that cannot later be rectified
- If the consent order does not include a “clean break” clause where it is applicable, either party retains their right to make a claim against the other in the future.
- Incorrect forms are used/incorrect process followed – the consent order process ensures financial arrangements are legally binding. Therefore, if you miss an essential element, the document will be rejected by the court, which can cause delay to the divorce process, or the consent order not being approved at all. This leaves the door open to future claims.
- Failure to send the consent order to court – if the document together with the Form A (Notice of Intention to Proceed with a Financial Application), Statement of Information for a Consent Order (Form D81) is not sent to the court for approval, the consent order will not be legally binding.
- If the court has doubts as to the agreement reached, it can ask the parties to provide more context by either answering questions or coming to court.
Can we draw up our own consent order and use a solicitor to check it?
Although you can create your own consent order, it is highly recommended you have a solicitor review it before submission. This is because the order must accurately reflect your agreement and comply with legal requirements such as entering into full and frank financial disclosure. A solicitor will ensure that the consent order is fair, reasonable, and likely to be approved by the court. They can also provide advice on any potential pitfalls or issues you might not have considered, such as tax implications or future financial needs.
If you draft the order without legal input, there is a risk that the court may reject it, so using a solicitor to check it before submission can provide peace of mind and help avoid potential legal complications in the future. That said, you must be prepared for its terms to be questioned if it does not meet the required legal standards.
A consent order serves as an essential financial agreement, finalising all financial ties. This is why it is so important to consult with a family law specialist to ensure the agreement is fair and legally binding, particularly in cases where one party may end up financially disadvantaged.
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