What Is a Consent Order? A Complete Guide for Divorcing Couples in England & Wales

What Is a Consent Order?

A consent order is a court order made with the agreement or “consent” of both parties. It records the financial settlement the parties have reached between themselves and asks the court to approve, or in legal terms “perfect”, that agreement by sealing the order. Once sealed by the court, the order becomes legally binding and enforceable on both parties.
This differs from an order imposed following a contested court hearing, where a judge determines what is fair after hearing evidence and legal submissions from both sides. In contrast, a consent order reflects the parties’ own negotiated agreement, which is then given the force of law through the court’s approval.

Importantly, reaching an agreement between yourselves is not enough on its own. The court is under a duty to consider whether the proposed settlement is fair, having regard to the statutory factors set out in section 25(2) of the Matrimonial Causes Act 1973. A judge will not simply rubber-stamp an agreement because both parties are content with it.
The distinction is significant. The legal effect comes from the court order itself, not from any prior agreement reached between the parties. It is the sealed consent order that is enforceable, not heads of agreement, not a signed document prepared privately between spouses, and not an exchange of emails.

This article considers the position in England and Wales only, where financial remedies on divorce are governed principally by the Matrimonial Causes Act 1973. Different rules and procedures apply in Scotland and Northern Ireland.

Why a Consent Order Matters

Without a consent order, any financial agreement reached between spouses is not final and is generally not legally enforceable. In practical terms, this means that if no order has been approved by the court, either party may still apply to the court to pursue financial claims against the other, potentially many years after the divorce itself has been concluded.

This often comes as a surprise to separating couples, particularly where matters have been resolved amicably. Many people understandably assume that once an agreement has been reached, written down, or even signed by both parties, the matter is legally settled. However, that is not the case. Unless the agreement is embodied within a court order, financial claims arising from the marriage usually remain open.

In practice, we regularly encounter situations where former spouses believed matters had been resolved informally, only for issues to resurface years later. For example, it is not uncommon for someone to remarry, purchase a new property, build a successful business, or receive an inheritance, before unexpectedly being contacted by their former spouse seeking a financial settlement from assets acquired long after separation. In some cases, this can extend even further.

The consequences can therefore be significant. Assets acquired after separation, including property purchased independently, future inheritances, savings accumulated post-separation, business growth, or unexpected windfalls, may all remain vulnerable to a financial claim where no consent order has been made.

A properly drafted consent order provides certainty and finality. It records the agreed financial settlement in a form that is enforceable by the court and, where appropriate, dismisses future financial claims between the parties through a clean break provision. This gives both individuals the security of knowing that their financial affairs have been conclusively resolved and allows them to move forward independently with confidence.

Expert insight

If financial matters are left open and one party were to win the lottery years later, the other party could still, in principle, bring a claim against those winnings. These scenarios highlight the breadth of what can remain “on the table” if a consent order has not been properly secured.

The only circumstance in which the ability to bring a financial claim is automatically lost is where the party seeking to make that claim has remarried before issuing their application. In those circumstances, they are barred from proceeding under section 28(3) of the Matrimonial Causes Act 1973.

It is important to understand the limited scope of this provision. The statutory bar applies only to the party who has remarried; it does not prevent the other party from bringing a claim. In other words, remarriage only extinguishes one person’s ability to apply for financial provision; it does not provide mutual finality.

For that reason, relying on remarriage as a way of “closing the door” on financial claims is not a safe or effective strategy. It offers no protection to the other party and does not achieve the certainty that a consent order provides. Only a properly drafted and sealed consent order can bring financial claims to a comprehensive and binding end.

The remarriage bar under section 28(3) of the Matrimonial Causes Act 1973 operates only to prevent the party who has remarried from issuing an application for financial remedies against their former spouse. It does not prevent the other party from bringing a claim, nor does it otherwise extinguish the overall potential for financial claims between the parties.

Accordingly, it should not be understood as providing any form of mutual protection or clean break. Its effect is strictly limited to the remarried applicant’s own right to apply, and it does not create finality between former spouses.

Where circumstances allow, most consent orders are drafted to achieve what is known as a clean break, a full and final settlement that severs the financial ties between the parties permanently.

When Can a Consent Order Be Made?

The court has no power to approve a consent order until the Conditional Order has been pronounced. The Conditional Order is the first of two formal orders made within divorce proceedings. It confirms that the court is satisfied that the marriage has irretrievably broken down and that the divorce can proceed to its final stage.

Only once the Conditional Order has been made can an application for a financial consent order be submitted for the court’s consideration. This timing is important, as the court will not deal with financial remedies until the divorce has reached this procedural stage.

Under the Divorce, Dissolution and Separation Act 2020, which came into force on 6 April 2022, the previous terminology of Decree Nisi and Decree Absolute has been replaced. These are now referred to as the Conditional Order and Final Order, respectively. The change in terminology was introduced as part of wider reforms to simplify and modernise the divorce process, although the underlying legal principles remain the same.

A Final Order should not be made until the financial position has been considered, where necessary, and in practice, it is usually advisable to ensure that a consent order is approved before applying for the Final Order, to avoid any unintended financial exposure.

In practice, the consent order is usually prepared and submitted to the court around the time the Conditional Order is pronounced, ensuring that it is ready to be considered and sealed either alongside or shortly before the Final Order is made. This helps to avoid unnecessary delay and ensures financial matters are resolved within the divorce timetable.

Obtaining legal advice at an early stage of the process is therefore important. It allows the financial settlement to be properly structured, and the consent order drafted in advance so that it can be submitted promptly when the procedural stage is reached. This proactive approach reduces the risk of delay and ensures that the parties can move forward with certainty as soon as the court can approve the order.

The Two Stages of Reaching a Consent Order

Stage One: Reaching Agreement

The first stage is agreeing on what each party will receive. Once an agreement is reached, it will sometimes be recorded in a “heads of agreement”. This is usually relevant where, for example, an agreement is reached at court but there is not enough time to draft a full consent order. In this scenario, the agreed terms would be recorded in writing and signed by the parties, their solicitors and/or counsel.

If an agreement is reached through correspondence, it is usual practice to move straight to drafting the consent order, which is more cost-efficient than drafting both a heads of agreement and a consent order.

Expert insight

In practice, the route taken to reach an agreement can have a significant impact on how quickly and smoothly heads of agreement are finalised. Mediation, for example, often helps narrow issues quickly, but it can also lead to more detailed drafting afterwards as the nuances of the agreement are translated into legally precise wording for the consent order.

A common sticking point we see in practice is the treatment of pensions. Whilst parties may be able to agree on broad equality in principle, translating that into a workable pension sharing order often requires additional expert evidence and specialist drafting, particularly where different pension schemes are involved or where one party has significantly greater accrued benefits.

For this reason, early clarity on pensions and other complex assets can significantly streamline the negotiation process and reduce delay in reaching final heads of agreement

Stage Two: Drafting the Order in Court-Ready Form

The second stage involves translating the agreement into a form that is legally effective and capable of being approved by the court. This requires more than simply restating what has been agreed; the terms must be drafted in the correct legal structure and language so that they can be implemented by the court.

Care must be taken to ensure that each element of the agreement falls within the court’s powers under the relevant legislation. Where a particular term cannot be made directly into an order, this is often addressed through the use of undertakings. An undertaking is a formal promise given to the court, which is enforceable in the same way as a court order, even where the court itself would not otherwise have the power to impose that obligation directly.

One common example is in relation to maintenance. Under section 28(1) of the Matrimonial Causes Act 1973, spousal maintenance ordinarily ceases automatically upon the remarriage of the receiving party. However, it is possible for the paying party to give an undertaking to continue making payments beyond remarriage, and that undertaking will be enforceable by the court.

This stage of the process is where legal drafting is particularly important. A consent order must be precise, comprehensive, and capable of being implemented without ambiguity. Any imprecision or omission can lead to uncertainty or disputes at a later date, which can be both costly and difficult to resolve.

Expert insight

The drafting stage is where legal expertise makes a real difference. Once the court has approved and sealed the order, it can only be varied or set aside in very limited circumstances. For that reason, getting the drafting right at the outset is essential to achieving genuine finality and certainty for both parties.

What Does a Consent Order Contain?

A consent order is a formal legal document and will typically include the following key elements:

• Definitions: The full names of both parties and dates of birth, details of the marriage or civil partnership, children’s names and dates of birth, details of property owned by the parties.
• Undertakings: Where necessary, the order may include undertakings. These are formal promises given to the court and are enforceable by way of fine and/or imprisonment. Undertakings are often used where a term cannot be directly ordered but is required to give effect to the overall agreement.
• The agreed terms: The main body of the order sets out the financial agreement reached between the parties. This may include provisions relating to the sale or transfer of property, division of pensions, distribution of savings and investments, and arrangements for spousal maintenance.
• Clean break clause: Where appropriate, the order will include a clean break provision confirming that the agreement is intended to be a full and final settlement of all financial claims between the parties. This typically includes claims relating to income, capital, pensions, property, and inheritance. Not all consent orders include a full clean break; where ongoing maintenance is provided for, a financial link between the parties will usually remain.

Where children are involved, it is important to note that child maintenance is generally dealt with through the Child Maintenance Service (CMS). However, an agreement reached regarding child maintenance payments can be included in a consent order. If child maintenance is included in the order, once 12 months have passed from the making of the order, either party can apply to the CMS, and any calculation made by the CMS will override the child maintenance provision made in the consent order.

Pension sharing orders are a particularly important and often misunderstood component of consent orders. Unlike other financial provisions, a pension sharing order does not take effect immediately upon approval of the consent order. Instead, it must be implemented by the relevant pension provider, which involves the court order being formally processed and accompanied by a pension sharing annex.

This can introduce additional timeframes and administrative steps, and it is therefore important that pension providers are identified early and their requirements are factored into the drafting process. In practice, delays often arise where pension information has not been fully obtained at the outset, which can hold up the implementation of an otherwise agreed settlement.

The Statement of Information (Form D81)

A consent order is not submitted to the court in isolation. It must be accompanied by a Statement of Information (Form D81), which provides the court with a summary of each party’s financial circumstances. This includes details of income, capital, housing arrangements, and any dependent children.

The Form D81 is a key document in the process. It enables the judge to assess whether the proposed agreement appears fair and reasonable in light of the parties’ respective financial positions. Without it, the court will not have sufficient information to approve the order.

In terms of timing, clients frequently want to know how long approval takes. Whilst this can vary depending on court workload and complexity, consent orders are typically processed within 4 to 6 weeks of submission, although this timeframe is not guaranteed.

For that reason, it is often advisable to ensure that all documentation, including the Form D81 and draft order, is fully prepared and accurate before submission, as incomplete applications can result in avoidable delay.

How Are the Finances Divided?

There is no fixed formula for dividing matrimonial finances on divorce. While the starting point is often equality, equal division is not automatically the outcome, and in many cases it may not be appropriate depending on the circumstances.

When assessing whether a proposed financial settlement is fair, the court applies the factors set out in section 25 of the Matrimonial Causes Act 1973. These statutory factors guide the court in reaching a decision that is tailored to the specific circumstances of the parties rather than applying a rigid calculation.

These considerations include, among other things, the length of the marriage, the financial needs and obligations of each party, the standard of living enjoyed during the marriage, the ages of the parties, and the contributions made by each spouse, whether financial or non-financial. Importantly, where there are dependent children, their welfare is the court’s first consideration and will take priority over other factors.

Ultimately, the court’s focus is on achieving a fair outcome in all the circumstances rather than a mathematically equal one, and this principle underpins both negotiated settlements and consent orders submitted for approval.

Expert insight

A common misconception is that “fair” automatically means a strict 50/50 division. In practice, the court often departs from equality where the circumstances justify it. For example, in cases where one party has been the primary carer for young children and has reduced or given up their earning capacity as a result, a greater share of the capital or ongoing maintenance may be required to meet their housing and income needs.

Conversely, where one party has significantly greater financial needs, for example, due to housing requirements or medical needs, the division may also be adjusted to reflect those needs, even if this results in an unequal split of assets.

These examples demonstrate that the court’s focus is not on mathematical equality, but fairness assessed through the lens of need, contributions, and future financial stability.

A financial division does not have to be equal to be fair. What matters is that both parties are left in a position to move forward, and that the agreement properly reflects the circumstances of their particular case.

Whatever the agreed division, both parties must exchange full financial disclosure before the consent order is finalised. The court expects this, and an order obtained without proper disclosure can be set aside.

Can a Consent Order Be Changed After It Is Made?

Once a consent order has been approved by the court, both parties are bound by its terms. Neither party can simply change their mind or withdraw from the agreement. The order is intended to bring finality to financial arrangements on divorce.

However, there are limited circumstances in which a consent order may be challenged, set aside, varied, or appealed. These include situations involving material non-disclosure, mistake, misrepresentation, lack of proper consent, or, in very rare cases, a fundamental and unforeseen change in circumstances.

The threshold for successfully challenging a consent order is deliberately high. The courts are strongly in favour of finality in financial litigation and will not revisit agreements lightly. This principle is central to the purpose of a consent order: to provide certainty and bring financial claims to an end.

Non-disclosure is one of the most common grounds on which parties seek to set aside a consent order. A leading authority in this area is Sharland v Sharland [2015] UKSC 60, where the Supreme Court confirmed that where there has been material non-disclosure, a consent order can be set aside even if the agreement appeared to have been freely entered into. The case underscores the importance of full and frank financial disclosure when negotiating a settlement.

While non-disclosure is a ground on which an application to set aside a consent order can be brought, in practice, not every omission will justify reopening a case. The courts distinguish between deliberate or material concealment and minor or inadvertent discrepancies, with only the former typically meeting the threshold required to disturb a final order.

Do You Need a Solicitor to Prepare a Consent Order?

Parties can, in principle, prepare and submit a consent order without a solicitor. In practice, however, this is rarely advisable.

The drafting of a consent order requires precision. The order must accurately reflect the agreement reached, be framed in legally effective terms, and properly address all categories of financial claims between the parties. Certain claims are not always immediately obvious and can easily be overlooked without legal insight. If a consent order is incomplete, ambiguous, or fails to properly dismiss future claims, it can create long-term difficulties that are often complex and costly to rectify.

Courts are also generally more comfortable approving a consent order where both parties have had the benefit of independent legal advice. This provides reassurance that the agreement has been entered into freely, with a proper understanding of its legal effect and consequences. It is also important to remember that once a consent order has been approved by the court, it can only be challenged in very limited circumstances.

Most financial matters arising from divorce are resolved by way of consent order rather than contested proceedings. This approach avoids the time, cost, and emotional strain of a final hearing and, importantly, ensures that the outcome reflects an agreement reached between the parties rather than one imposed by the court.

While costs will vary depending on complexity, preparing and obtaining a consent order is typically a fraction of the cost of contested financial proceedings, particularly when compared with the expense of a final hearing. More importantly, it can also significantly reduce delay and uncertainty, allowing both parties to move forward with financial certainty much earlier in the process.

From a practical perspective, investing in properly drafted legal advice at the consent order stage often prevents significantly greater expense later, particularly where issues such as pensions, business assets, or ongoing maintenance are involved.

When to Seek Legal Advice

Every divorce involving financial matters benefits from legal advice, but there are certain situations where seeking that advice early is particularly important. If any of the following apply to your circumstances, it is advisable to speak with a solicitor at the earliest opportunity:

• You and your spouse have reached an agreement and want to make it legally binding.
• There are significant assets involved, including property, pensions, savings, or a business.
• You are unsure whether the agreement you have reached is fair or protects your long-term financial interests.
• You are concerned that your spouse may not be providing full and frank financial disclosure.
• The divorce is contentious and negotiation has broken down or stalled.
• You have already finalised your divorce and no financial order was made at the time.

It is never too early to seek advice. In fact, understanding your legal position before reaching any binding agreement is often the most effective way to protect your financial future and avoid costly mistakes later.

Taking advice at an early stage also allows the consent order process to be properly structured from the outset, reducing delay and ensuring that any agreement reached can be formalised efficiently and with confidence.

Our role is to guide clients through this process clearly and pragmatically, helping to achieve certainty and finality while minimising unnecessary stress and dispute.