If you have reached a financial agreement with your spouse, the next step is to record the agreement in a document called a ‘consent order’ which must be sealed (i.e. approved) by the court. Without an approved consent order, it may be difficult to successfully apply to the court to have it enforced if your spouse later reneges on the agreement.

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The process

1.       Heads of Terms – this is essentially a headline summary of the agreed terms.

·        These should be in writing, such as in an email or letter, and should ideally be signed by both of you (or stated in writing that you both agree to it). Each of you should take legal advice before doing so or make clear that you have each had the opportunity to do so and have declined this.

·        It is not a legal requirement to prepare heads of terms, and so there is no prescribed way in which it should be drafted, but it is useful to have as it may take a while to obtain take legal advice on the specific drafting of any consent order.  

·        It can also be useful to agree any heads of terms now if you have not yet obtained the conditional order in the divorce and you are waiting for the 20 week ‘cooling off’ period to elapse (see point 2 below).

·        If you have reached an agreement in mediation or with the assistance of lawyers, your mediator and/or lawyer/s may have prepared the heads of terms for you.

2.       Conditional order in the divorce – this is the first order out of two in the divorce process.

·        You can only submit a consent order to the court for approval if you have obtained the conditional order in the divorce process.

·        Once a divorce application has been submitted and issued (reviewed) by the court, there is a 20 week ‘cooling off’ period to wait before you can apply for the conditional order. The ‘cooling off’ period is to encourage parties to discuss and negotiate their finances, so you could use this time to progress your discussions or even agree the heads of terms and a consent order.

·        For a breakdown on the divorce process and the various steps involved, I have written an article on this here.

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3.       Consent order – this is a prescribed way of setting out the agreement reached in a court order.

·        The court will only consider the consent order, not the heads of terms

·        You can download a precedent consent order from the judiciary website but it is strongly recommended to instruct a lawyer to prepare the consent order on your behalf as the precedent is complex, includes many essential clauses (which may not be immediately obvious) and there are many considerations to think about which the heads of terms may not have covered.

·        You and your spouse will need to agree on the drafting of the consent order and sign it. If you have lawyers, they will need to sign it too.

4.      Statement of Information (also known as the Form D81) – this is a form which sets out what each of your financial situations are now and what they will be after the agreement is approved by the court. This can often be a time-consuming part of the process but it is nonetheless essential.

·        You and your spouse need to complete, sign and submit to the court the Form D81 with the consent order, conditional order and potentially a Form P1 regarding any pension sharing order (see below).

·        You can download a blank Form D81 online but again it is strongly recommended to instruct a lawyer to prepare the Form D81 on your behalf to ensure it is completed correctly.  There are several narrative sections of the form which can help explain the background to the agreement to the judge reviewing your order (the court does not just ‘rubber-stamp’ everything it is asked to seal).

·        You do not have to exchange financial disclosure in support of the figures you each insert into the Form D81, unless you agree to do so. If you have lawyers or have been in mediation, you will likely have been advised to exchange some level of financial disclosure before reaching agreement (and recorded in heads of terms). A lawyer may ask you sign a waiver letter if you and your spouse agree not to exchange supporting evidence of the figures inserted in the Form D81 in any event.

·        It is important to remember that your duty to provide full and frank disclosure of your circumstances will continue at least up until the order is sealed. Any material change in circumstances should be disclosed as soon as possible. If it is later discovered (and could have materially affected the outcome of your discussions), it could lead to your order being set aside.

·        You and your spouse will need to agree on the drafting of the Form D81 and sign it. If you have lawyers, they can sign it too, but there is no legal requirement that they do so, only that the two of you do.

5.       Pension sharing annex (Form P1) – this is a form you must complete if it has been agreed that there is to be a pension share, i.e., a proportion of one party’s pension is to be transferred to another.

·        You can download a blank Form P1 online but again it is strongly recommended to instruct a lawyer to prepare the Form P1 on your behalf to ensure it is completed correctly.  

·        The Form P1 does not need to be signed, but it should accurately record the details of the pension share, including the details of the scheme administrator and the pension to be shared.

·        You should take independent financial advice on the destination of a pension share. Your solicitor cannot advise you in this regard.

6.       Submit to court – once you have the conditional order in the divorce, consent order, Form D81 and Form P1 (if relevant) you can submit these documents to the court for approval.  

·        If neither of you has a lawyer, one of you can send the forms to the court by post to HMCTS Financial Remedy, PO Box 12746, Harlow CM20 9QZ. You will also need to complete a Form A to formally give notice of your intention to proceed with an application for a financial order.

·        If one of you has a lawyer, they can submit the documents via an online portal for solicitors (a Form A is not required in this instance).

·        In either scenario, there is a court fee of £58 to pay for submitting the documents.

·        Once the documents are approved by the court, a sealed (i.e. stamped) version of the consent order and Form P1 will be issued by the court (the Form D81 is not sealed). The court may ask you questions about the agreement before it makes its decision.  In the alternative or in addition, it may list a short hearing (which may be referred to as a ‘mention’) where a judge can make sure you both understand the implications of the agreement you have reached and the consent order you have signed.

7.       Final order in the divorce – this is the second order out of two in the divorce process which formally brings your marriage to an end.

·        You can only apply for the final order after 6 weeks and 1 day have passed from the date of the conditional order.

·        It is best that the final order is not obtained until the consent order is sealed by the court in respect of the finances – this is to preserve any entitlements each party has as a spouse (for example under a pension or any life assurance policies) while the financial agreement is being formalised/considered by the court.

·        A pension sharing order can only be implemented once a final order in the divorce is made, so you will need to send to the pension provider the sealed consent order, sealed Form P1 and the final order when the time comes.  

·        A pension sharing order comes into effect upon the later of the final order or 28 days from the date of the order. Only at this point can it be enforced. If you or your partner applies for the final order before the expiry of this period and you are the beneficiary of the pension share, you could be at risk if your partner passes away before the pension sharing order has taken effect. You will not be able to enforce the order nor will you have the protection of widower or widow’s pension rights because your marriage will have already been formally brought to an end.

Summary

Legal advice or assistance with the paperwork should always be sought when formalising a financial agreement to ensure all requirements are adhered to. Whilst it is not a requirement to exchange financial disclosure with supporting evidence, it is always advised that some level of this is engaged with before signing a consent order which may then be approved by the court and become more easily enforceable later down the line.

For more information, please contact the team at Burgess Mee on mail@burgessmee.com

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