Most people who are going through a Divorce right now, or who have been divorced and have used a solicitor, will have heard of a Consent Order. As a Divorce Solicitor, I see this as being the magical document. It is the end of a negotiated process and the document that protects you from further claims being made against you by your spouse. It is in many ways more important than a Decree Absolute.
What is a Consent Order?
Well, the clue is in the name. It is an order of the court which sets out an agreement reached between you and your spouse in relation to your finances. The court expects the agreement to be fair, taking into account your current assets, including housing, business assets, pensions, savings and investments, current income and any debts that you may have.
My simple aim is to swap financial information with my clients’ spouses solicitors. I say simple, but there is often a lot of work involved to compile this information. I will ask my client to provide written evidence in support of all those items that we are expected to disclose by way of full and frank disclosure. There is a list on the last page of what is known as Form E. Take a look and if you are about to begin divorce proceedings then compiling this information for your solicitor will save you a lot in legal fees. This form is used as a benchmark for the collection of information.
In particular, I would expect to see all bank statements going back a year. That way, I can look for unusual payments. One of my clients, “Christine” was sure that her husband was filtering money away. When I looked at his bank statements, I could see money going out to another previously unknown account. I queried this, and after following quite an audit trail, it transpired that Christine’s husband owned another house, in which he frequently stayed with another woman and their secret child.
I might commonly spot sudden, frequent amounts of cash being removed from an account in the months before one party says that they want the marriage to end. Or people frequently “forget” to mention their terminal grant received when leaving the armed forces. Or the life policy that has an encashment value.
Regarding pensions, it is not good enough to just accept that the parties will split their pensions on a fifty-fifty basis in the case of longer marriages. Let’s say two pensions are valued at £100,000 each. But if one of them is a civil service pension, then the payment received for life may be far higher than a private pension. The correct way to address the issue of valuable pensions is to have them valued by an actuary who can advise as to the % of pension which should be transferred to one party from the other.
The name Consent Order implies that everything runs smoothly and that there is no ongoing angst in the background. Sometimes this is not the case. The couple may not get along at all. There is often a huge disparity at the start of a case in relation to financial expectations. I may have a client who has been married for forty years and who decides that they are not going to give their spouse any of their pension. If that spouse has a low pension and very little by way of savings and income, then I’m afraid that any court would see things differently. My job is to manage your expectations and those of your spouse and their solicitor. I have been a divorce lawyer for 30 years, and I have a very good idea as to what a judge will and will not order by way of a Financial Settlement.
There are parameters within which judges will operate. There is no set formula for any of this. I have to advance the arguments that suit your circumstances and needs or those of your children. I always have in mind what a judge must consider if this matter were being heard at court. These are some of the criteria;
- Income, earning capacity, property and other resources which each spouse has or is likely to have in the foreseeable future, including in the case of earning capacity any increase in that capacity it would be reasonable to expect the spouse to take steps to acquire
- The financial needs, obligations and responsibilities which each spouse has or is likely to have in the foreseeable future
- The standard of living enjoyed during the marriage
- The ages of each of the spouses and the length of the marriage
- Any physical or mental disability of either spouse
- The contributions which each spouse has made or is likely to make in the foreseeable future towards the welfare of the family, including any contribution by looking after the home or caring for the family
- The financial needs of any child
- Any physical or mental disability of any child
- The manner in which any child was being educated and in which the couple expected the child to be educated or trained
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