Financial Remedies – obtaining approval of a consent order:

Introduction:

1. On occasion the parties reach an agreement prior to the First Appointment hearing or in the midst of proceedings. In these circumstances, the parties can send a consent order to the court for the court’s consideration and approval. The court remains the final decision maker and the court is unlikely to approve an order if it is extremely unfair or arbitrary.

2. It is important to obtain a final order – even if the parties have very little to prevent the risk of future litigation. Many people believe that obtaining a court order is expensive – in the long term it will save people money in the long term and remove even the potential for litigation.

The process:

3. The application to approve a consent order must follow Practice Direction 41B and

Practice Direction 36T. The basic requirements are as follows:
a. Form A – Notice of intention to proceed with an application for a Financial Order.
b. A draft signed consent order.
c. A pension sharing annexe [if pensions are being shared]
d. D81 form – available on the Government website.
e. A decree nisi or absolute OR a conditional or final order.
f. The appropriate court fee.

Form A:

4. The person making the application needs to complete this form. Actual proceedings will not be required as the financial settlement has been agreed between the parties and
drafted into a consent order. To indicate to the court that a hearing is not required the application can be marked as for dismissal or approval of consent order.

The signed consent order:

5. The consent order should follow the standard format provided by Mr Justice Peel. The standard orders were updated in October 2023. The draft orders can easily be accessed
from the justice.gov website.
6. Please ensure the order has been signed by both parties and there are no mistakes/typos.

Pension sharing annexe:

7. In the event the parties have agreed to share some or all of their pensions then a the form P1 – Pension Sharing Annexe must be completed in full. The form provides
instruction to the Pension providers on the division of the pension, in the absence of a annexe they will not divide the pension, it is vital that the form is completed fully and accurately.

The D81 form:

8. The D81 form is referred to as a “statement of information” it mirrors the Form E and also mirrors the ES1 and ES2. The purpose of the form is to enable the judge to see the parties financial standing very quickly without embarking on the detail.

9. It is very important that the form is completed fully, accurately and that it is signed by both parties. It is a long form and extracts all financial information of both parties, it can take time to complete but it is necessary to do so accurately.

The consent order:

10. The terms of the consent order are down to the parties however the court will follow it’s general principles loosely. Firstly the agreement needs to be fair – this depends on
the circumstances. An example where the court rejected a consent order, after a very long marriage the wife agreed to leave the marriage with only the gold jewels she
brought to the marriage – there was no other provision made for her. The judge rejected this agreement as the wife would have no income and she was a homemaker throughout
her adult life.

11. Another example of where the court rejected the consent order was when the Husband sought to retain the entire pension – the parties were both approaching retirement age
and the judge rejected the agreement on the basis the wife would have no pension provision in her later years.

12. It is important to note that there is a greater and increasing emphasis on pensions in the family court. The previous Government correctly identified that many divorced women
face extreme poverty and hardship in their later years due to pension disparity. The disparity is caused by two things – childrearing and divorce settlements. Many women
favour retaining the family home ahead of pension provision – this is rooted in emotion but a financially dangerous position to hold. I counsel women to look beyond the family
home and into their later years where they will need a reliable consistent income – with the rate of inflation and cost of living – a basic state pension is unlikely to meet basic
needs.

The appropriate court fee:

13. The court fees increase periodically – if a solicitor is lodging the order and form the monies can be paid from their account. If a lay person is lodging the order then payment
can be made by cheque or card.

14. If the Applicant has a low income or in receipt of certain state benefits, then they can apply for a fee reduction by completing Form EX160A.

On receipt of the documents:

15. Usually the consent order is reviewed by a judge without a hearing, in “boxwork”, however when the Judge is not completely content with the order they may list a short
hearing for the parties to attend or make directions to seek clarification on certain issues. The parties need to be prepared for all outcomes. However, if the correct procedure has
been followed and the terms of the consent order are fair then there is a good chance the court will approve the order.

Aysha Miah
33 Bedford Row
November 2024