My spouse and I are going through a divorce. We have agreed what is happening with the matrimonial finances. Why do I need a consent order? Is this strictly necessary?

By Anna Patsalides

Associate Solicitor

30 October 2024

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There are not many instances where, as a Family lawyer, I can categorically give a yes or no answer. However, in this instance, I can categorically say that in every case the answer to the above is yes if you want your agreement regarding the matrimonial finances to be binding. In such circumstances it is imperative that parties to a divorce deal with the finances and this is recorded in a Consent Order which is approved by the Court.

This is the case no matter what the financial circumstances of each party. Even in a short marriage with no children and limited assets, it is crucial that any agreement about how your assets are to be divided is recorded in a consent order if you wish to be bound by it.

Why?

The reason for this is that, while you may legally bring your marriage to an end, if you do not have a Consent Order in place you will remain financially linked to your ex-spouse. This means that at any point in the future your ex-spouse can make a claim against you.

Let’s consider the scenario below:

You and your spouse separate and divorce. You do not seek legal advice as you looked online, and the process of no-fault divorce is relatively simple so why incur additional fees of instructing a solicitor?

You apply for divorce, pay the Court fee, receive your Conditional Order of divorce and Final Order of Divorce. That’s your divorce complete but what about the matrimonial finances? Unfortunately, your application for divorce is entirely separate to resolving the matrimonial finances.

Let’s presume you come to an agreement with your ex-spouse about how you are going to divide the finances. You had a relatively short marriage (less than 5 years), and both agree to leave the marriage with what you put in. Two years pass, you focus on your career and your hard work and effort is recognised by your employer and you work your way up the ladder, build up your savings and buy a property.  In contrast, your ex-spouse falls on hard times, they are made redundant from work and build up debt. Suddenly that deal that you came to does not seem so fair to them and you receive notification from the Court that they have made an application, and they are asking the Court to determine what is a fair division of your assets.

What next?

The Court will issue the application and the burden will then be on you to adduce evidence that an agreement has already been reached. Such applications can be complicated and even if you can evidence your agreement, if your former spouse did not take legal advice at the time and you did not provide disclosure of your financial circumstances, they may not be held to the agreement reached.

The Court will consider your current financial circumstances as well as those of your ex-spouse in determining what a fair outcome will be.

How could this have been avoided?

If you had sought legal advice at the time and presuming you agreed that neither of you would have any claim against one another in the future and a Consent Order was prepared on this basis, this situation could have been avoided entirely. This would save the significant time and cost of future litigation.

In conclusion, whilst the divorce process has become much more streamlined and straightforward, it is still important to seek legal advice on the division of your finances to avoid a situation such as the one I described above.

If you are in the process of, or considering, divorce and have not addressed how your matrimonial assets should be divided, it is important that you seek legal advice. Please get in touch today on 01727 845245 or contact anna.patsalides@taylorwalton.co.uk.

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Please note that the contents of this article are intended solely for general information purposes and should not be considered as legal advice. We cannot be held responsible for any loss resulting from actions or inactions taken based on this article.