Consent Orders After Divorce

Many divorcing couples reach a financial agreement informally — by email, through solicitors' correspondence, or through mediation — and then assume the matter is concluded. It is not. An informal agreement, however carefully drafted, is not legally binding in family law. Either party can resile from it, and — more importantly — financial claims between divorced parties do not automatically expire.

The House of Lords established in Barder v Barder [1988] that superimposed on every divorce is a continuing possibility of financial claims. Without a court order dismissing those claims (a clean break), a former spouse can theoretically make a capital claim many years after the divorce — for example, if one party receives a large inheritance or lottery windfall. This has happened in a number of high-profile cases.

A consent order is the mechanism by which an agreed financial settlement becomes a binding court order. Once the court approves it, the terms are enforceable in the same way as any other court order, and the dismissed claims cannot be reopened (except in very limited circumstances, such as fraud or a fundamental change in circumstances under Barder principles).

Applying for a financial consent order requires the following steps:

1. Reach agreement: Both parties must agree on the full terms — capital assets, property, pensions, maintenance (if any), and any other financial matters. The agreement should be set out in a draft consent order in the correct legal form.
2. File Form A: Submit Form A (the application for a financial remedy order) to the court with the £53 court fee for consent applications. Mark it as a consent application. This formally commences proceedings and gives the court jurisdiction to make the order.
3. MIAM exemption: You must have attended a MIAM (Mediation Information and Assessment Meeting) or be exempt from doing so. Common exemptions include domestic abuse, urgent proceedings, or an agreement already reached through solicitors. Tick the relevant box on Form A.
4. Form D81: Both parties must each complete a Form D81 (Statement of Information for a Consent Order in Financial Remedy Proceedings). This form discloses basic financial information to the court — assets, debts, income, mortgage, and net assets — so the judge can assess whether the order is fair. It is not the same as the full Form E financial disclosure required if the case is contested.
5. Submit the draft order and D81 to the court: Send the draft consent order (usually sealed by a solicitor) and both D81 forms to the court. The judge reviews these on the papers (without a hearing) and, if satisfied the order is fair, seals and returns it.

Form D81 (Statement of Information for a Consent Order) is a key document. It is completed separately by each party and provides the court with a snapshot of each person's financial position: their gross and net income, capital assets, outstanding mortgage, and net assets after any proposed settlement. It also includes details about the divorce and any children.

The judge uses Form D81 to assess whether the consent order is fair. If the order looks grossly imbalanced (for example, one party takes everything and the other is left with very little and has significant needs), the judge may decline to approve it and list the matter for a short hearing to explore the terms.

A well-drafted consent order should address all of the following that are relevant:

• Capital orders: Who keeps which property or assets, and in what proportions if sold. Any charge on the family home (such as a Mesher order).
• Pension sharing: Whether any pension sharing order is being made, in favour of which party, and in what percentage.
• Maintenance orders: Whether spousal maintenance is being paid, to whom, the amount, the term, and the basis for variation or termination. A term order (time-limited maintenance) is generally preferred to a joint lives order in modern family law.
• Clean break: A clause dismissing all remaining capital, pension, and maintenance claims between the parties — this is the clean break provision. Without it, claims remain technically open.

Once the court seals the consent order, it becomes binding on both parties. Its terms can be enforced in the same way as other court orders. If a party fails to comply — for example, by not transferring a property or not paying a lump sum by the required date — the other party can return to court to enforce it, using powers including charging orders, third-party debt orders, or committal proceedings for contempt of court in serious cases.

Maintenance orders within the consent order can be varied if there is a material change in circumstances (such as redundancy, serious illness, or retirement). Capital orders — including property transfers and lump sums — are generally final and cannot be varied once made. Pension sharing orders are also final once implemented.

A consent order can be set aside in very limited circumstances: where a party failed to make full and frank financial disclosure at the time (leading to a fundamentally different picture of the finances); where a Barder event occurs (a supervening event of a fundamental and unforeseen nature that undermines the basis of the order); or where the order was obtained by fraud or duress. Setting aside is uncommon and difficult to achieve — it requires a fresh application to the court.