Prior to the arrival of the coronavirus and lockdown the Office of National Statistics (ONS) recorded that the divorce rate in the UK was dropping with 42% of marriages ending in divorce. However, anecdotal evidence appears to indicate that there is likely to be a spike in divorce almost certainly due to the stresses and strains of the current situation.
A divorce is an undertaking of two halves, in the first place, the dissolution of the marriage – the divorce – secondly, the division of the couple's assets and settling their financial arrangements. The vast majority of divorcing couples both wish to be divorced. The objections arise over who was to blame and who get the bigger share of the assets. Generally, financial arrangements can be considerably more taxing.
Those couples who are able to come to a mutual agreement with regard to the division of their finances are in a position to request the court for approval of a consent order once they have thrashed out a mutually acceptable agreement. A consent order sets out the financial agreement made between the parties and is legally binding and crucially prevents either party from making a financial claim in the future unless there are certain exceptional circumstances which are clearly defined.
The couple can work together to draft the terms of a consent order which, once signed by both parties is unlikely to be amended by the court, unless it could be demonstrated that the agreement was made under duress or it omits the financial obligations owed to any third parties such as children of the marriage. A consent order sanctioned by the court gives the couple certainty and enables the divorcing couple to plan their next steps in the knowledge that they are on firm financial ground and no unpleasant surprises are likely to rise up and scupper any plans or projects they may intend to embark upon.
Any court action involves a cost that some individuals may feel could be avoided as the couple has amicably agreed on the terms of the consent order. However, informal agreements can easily breakdown and without formal recognition by the courts, the terms of an informal agreement cannot be enforced. Daniel Theron, a partner, suggests "the temptation to simply rely on an informal arrangement because at the time of the divorce both parties were in agreement and there was no animosity between them should be resisted. Attitudes can change, for example, if a new relationship is embarked on it is not unknown for the previously "reasonable" ex-spouse to have a change of heart and make new financial claims that throw the existing informal arrangement into chaos." The costs involved in obtaining a consent order are cheap at the price compared to lengthy acrimonious arguments through the courts where "old wounds" can be re-opened.
The assets that can be included in a consent order clearly depend on the circumstances of the divorcing couple. Generally, the matrimonial home is the largest and most important asset to be considered. Depending on the needs of the couple and any children of the marriage who are in their minority, broadly, the options are - the property can be sold and the proceeds divided between the parties; one party can buy out the other party; in the event of dependent children the parent with day-to-day custodial care may remain living in the property until the last child reaches the age of 16 years or completes their education; the entire property can be given over to one party as their financial settlement and the remaining assets built up during the marriage comprise the financial settlement of the other party. This may be the more challenging way of dividing the matrimonial assets as obtaining accurate valuations acceptable to both parties can sometimes present a difficulty. With regard to smaller joint assets such as the white goods acquired during the course of the marriage, the couple should come to an arrangement that fairly divided such items. Assets that were obtained prior to the marriage or were inherited during the course of the marriage are assumed to have been brought into the marriage and therefore can be divided between the couple as assets of the marriage. However, frequently such assets are retained by the original owner or the person who inherited. Obviously the value of such assets is a consideration, a small item of jewellery compared to a sizeable property need to be considered differently and a suitable arrangement made between the couple.
Daniel Theron commented, "the question of pensions and life insurance policies, if either one or both parties have such financial assets, can be managed by an arrangement where the current value is divided and one half paid out either at the point of divorce or can remain against withdrawal in the future, perhaps when the pension is taken." Daniel further commented "the question of maintenance for an ex-spouse is often a sticking point as the party obliged to pay maintenance often resents having to pay their former spouse after they have parted; which effectively leaves them still connected even after a "clean break"." Maintenance in respect of the children of a marriage is not viewed in the same way and is often not included in a consent order. Spousal maintenance can be carefully defined with clauses reducing or ending the responsibility on a future marriage or long-term relationship being entered into by the supported person.
Expenses (such as school fees or medical insurance) and debts should be included in a consent order as either one can have a significant impact on the fairness of the financial arrangements. A consent order can also consider the question of who retains care of any pets acquired by the couple during their marriage; an issue that can sometimes be one of the most difficult aspects to deal with.
There are some very limited circumstances where a consent order may possibly be varied; the court regards a consent order as a binding agreement made with the full consent of both parties and in the absence of coercion, fraud or misrepresentation, undue influence or a significant alteration in circumstances a consent order is binding.
Originally published July 14, 2020.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.