A married couple, by virtue of the marriage, is, in principle, entitled to make financial claims against the other in the event of a divorce. It is a common misconception that matrimonial financial claims between married couples automatically end upon divorce. This is not the case, however, and matrimonial financial matters, including assets, pensions and income are dealt with separately to the plain divorce.
While many couples choose not to make claims against the finances of the other, and instead are able to resolve their financial matters by agreement, whether through direct negotiation, inter-solicitor negotiation or mediation, it remains important to formalise the agreements as a court order. It is important to note that the financial matters will remain “open” indefinitely, unless any agreements to the contrary have been embodied in a court order. An agreement that has been reached directly between the parties is not legally binding, even if recorded in writing and signed by the parties. The aforementioned agreement can be made legally binding by asking the court to convert the agreement into an order, which is known as a “consent order”.
A consent order is the document that reflects the terms on which you have agreed to divide your matrimonial finances, including any periodical payments, what will happen to the family home, pensions, chattels and any other financial matters. The order becomes legally binding and consequentially enforceable once approved by the court. The approval of the order is at the judge’s discretion, and its fairness will be a determining factor. Once the order has been approved by court, if one party breaches the terms of the order, then the other can apply to court to enforce the terms.
Even in the event that a couple has agreed to not make any claim against the finances of the other and leave the marriage with only what is in their own name, a consent order should still be drawn up. This is known as a “clean break”, and recording the same in a consent order will sever any financial ties between the parties.
A significant objective and benefit of obtaining a consent order is the alleviation of any uncertainty in regards of finances, and providing security moving forward. Having the legally binding order prepared upon divorce will sever any financial ties between the parties and prevent any future claims. It is important to note that the consent order can only be lodged at court for approval once the Conditional Order in respect of the divorce has been obtained.
For more information or assistance on obtaining your own financial consent order, please get in touch with our Family Team on 01273 447 065.
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