Consent orders

What is a consent order?

In England and Wales, a consent order is a type of financial agreement that formalises what happens to a couple’s assets (eg property) during their divorce or the dissolution of their civil partnership. It is very similar to a Separation agreement, however, a consent order is binding while a separation agreement is informal. 

In other words, a consent order is a legal document that confirms an informal agreement made by a separating couple. The consent order is sent to the court, where a judge approves it. Once the judge signs and approves the consent order, it is legally binding on both individuals.

What is a minute of agreement?

A minute of agreement, as it is known in Scotland, is very similar to a consent order. It is a type of agreement that formalises the agreement reached by a separating couple in relation to (some of) the issues arising from their separation.

Generally, a minute of agreement setting out what the couple have agreed to is drafted with the help of a lawyer. The minute of agreement is then registered in the Books of Council and Session, which allows it to be enforced by the courts should either party fail to comply with it. 

As a result, it is very similar to a separation agreement, however, a minute of agreement is legally enforceable by the courts.

For more information, read Minutes of agreement in Scotland.

What is included in a consent order or minutes of agreement?

Consent orders and minutes of agreement address various points, including: 

Property

When separating, the parties must agree on what will become of the matrimonial home (ie the property they lived in during their marriage or civil partnership). For example, whether the matrimonial home will be sold or left to the spouse who has custody of any children. When keeping the matrimonial home, the parties should also consider how mortgage payments will be made (eg who will continue to contribute to mortgage repayments).

Assets

The parties need to determine how their assets, including joint assets (ie assets the parties own together), will be distributed upon divorce or dissolution. For example, who will own:

• family businesses

• shares

• insurance policies

• holiday homes

• savings

• investments

Personal property

The parties need to determine how personal property will be distributed. Examples of personal property include things such as furniture, jewellery and fine china. Generally, this involves each party taking ownership of their own goods.

Pensions

The parties will need to consider how their pensions will be affected and how they may be divided. This applies equally to individuals who are not yet retired and those in retirement. The parties will need to decide how they wish to divide their pension(s) (eg by pursuing pension sharing or offsetting their funds against other assets).

For more information, read Important pensions considerations on divorce or dissolution.

Spousal maintenance

The parties need to decide whether either party will make maintenance payments to the other. This is known as ‘spousal maintenance’ and tends to be relevant in situations where one party believes that they will not be able to manage financially after the divorce or dissolution. 

For more information, read Spousal maintenance and Divorce and financial arrangements.

Child maintenance

If the parties have children, they will need to decide on the details of all child maintenance payments (eg who will make the payments, how much child maintenance will be paid per month and when the payments will stop). Usually, the primary carer (ie the parent with child custody with whom the child spends most of their time) will receive maintenance payments to help support the child.

For more information, read Child maintenance in England and Wales and Child maintenance in Scotland.

Pets

If the parties have any pets, they should determine how their divorce/dissolution will affect the pets’ ownership. This mainly involves deciding on who will keep a pet, but can also address things like visitations by the other party or maintenance payments.

For more general information, read Separating from your spouse or civil partner and Legal considerations after divorce or dissolution.

How does the clean break principle apply to consent orders and minutes of agreement?

What is a clean break?

The clean break principle is a concept applied to financial matters in divorces and dissolution. A clean break involves severing financial ties between the parties as soon as is reasonable after their divorce or dissolution.

What is a clean break clause? 

For the purposes of consent orders/minutes of agreement, a clean break clause is a clause included in the consent order/minutes of agreement that dismisses rights to make certain types of claims arising out of a marriage or civil partnership. 

By including a clean break clause in a consent order/minutes of agreement, the parties’ financial ties will come to an end after their divorce or dissolution. Such a clause will generally also specify that neither party may make financial claims against the other in the future.

A clean break clause is only included once the parties have agreed on how to divide their assets (or have already divided them and simply want to safeguard against future claims) and where appropriate (eg where no ongoing maintenance payments will be made).

A consent order including a clean break clause is also known as a ‘clean break consent order’. Similarly, minutes of agreement including such a clause may be referred to as ‘clean break minutes of agreement’.

What is a clean break order? 

A clean break order is similar to a consent order or minutes of agreement. While consent orders are intended to be used by couples who have financial assets to divide at the time of divorce or dissolution, clean break orders are for those who do not have assets to divide.

There are different types of clean break orders, including:

• immediate clean break orders - these dismiss all future maintenance and capital claims (eg those against property or pensions)

• immediate clean break orders where a lump sum has been paid - these achieve an immediate clean break by one party’s making a lump sum payment of all maintenance payments to the other party

• deferred clean break orders - this is where a clean break will occur at a defined point in the future (eg after a set number of years or when a child turns 18 or finished school)

Ask a lawyer if you have any questions about consent and clean break orders.

Can I just make a separation agreement instead?

If the parties have reached a financial agreement but do not want to send it to the court to be approved, they can record their agreement in a Separation agreement. However, only a judge can order a clean break (eg to prevent either of the parties from making future claims against the other). As a result, it is recommended to formalise all financial arrangements in a legally binding consent order.

What happens if a consent order or minutes of agreement are broken?

Due to their nature as legally binding documents, if either party fails to comply with the terms of a consent order or minutes of agreement (eg by failing to make maintenance payments), the other party can complain to the courts. The courts will then investigate the situation and, where appropriate, take action against the party who has breached the agreement (eg by enforcing payment).

If you have any questions or concerns, do not hesitate to Ask a lawyer.