Consent orders — making your financial agreement legally binding

What is a consent order?

A consent order is a court order recording a financial agreement reached between divorcing parties. Unlike an ordinary contract, a court order is enforceable — if one party doesn’t comply, the other can go back to court to enforce it.

Crucially, a consent order also extinguishes financial claims — once made, neither party can generally bring further financial claims against the other. Without a consent order, those claims remain open, potentially indefinitely.

A consent order can cover:

• The family home (sale, transfer, or Mesher order)
• Other property
• Savings and investments
• Pensions (via pension sharing or attachment)
• Maintenance (spousal or child)
• Lump sum payments
• A clean break clause

Why you need one — even if you’ve agreed

Many couples reach a financial agreement without going to court — through solicitor negotiation, mediation, or direct discussion. This is encouraged. But the agreement itself, however carefully documented, is not legally binding.

Without a consent order:

• Either party can make financial claims against the other in the future
• This includes after remarriage (in some circumstances)
• A former spouse can even claim against your estate after your death (in some jurisdictions)
• If circumstances change, the other party may revisit the agreement

The cost of a consent order is modest compared to the risk of leaving financial claims open.

When can you apply?

You can only apply for a consent order after the conditional order (formerly decree nisi) in the divorce has been pronounced. You cannot apply during the early stages of divorce proceedings.

Most solicitors advise applying for the consent order before applying for the final order (formerly decree absolute) — to ensure finances are sorted before the divorce is finalised.

How to apply

Step 1: Draft the consent order

The consent order must be drafted as a formal court order. Both parties must sign it. Given the technical requirements, most people instruct a solicitor to draft this — even if they’ve agreed everything themselves.

The order needs to:

• Set out the agreed terms clearly and precisely
• Deal with all financial claims (not just the obvious ones)
• Include a clean break clause if that is intended
• Be in the correct format required by the court

Step 2: Complete Form D81

Form D81 — the Statement of Information for a Consent Order — must be filed alongside the draft order. It provides the court with a summary of both parties’ financial positions.

Both parties complete the form. It asks about:

• Age and health
• Whether either party intends to remarry or cohabit
• Capital and income of each party (summary level, not the detail of Form E)
• Details of any children

Step 3: File with the court

File the signed draft consent order and Form D81 at the court dealing with your divorce, with the court fee (currently £53).

You do not usually need to attend court — a judge considers the application on paper.

Step 4: The judge considers it

A judge reviews the application and decides whether the order is fair. They consider:

• Whether both parties have had legal advice or understand what they’re signing
• Whether the terms are broadly fair (not necessarily equal, but not grossly unfair)
• Whether there are any children whose interests need protecting

If the judge has questions or concerns, they may ask for more information or list a short hearing. In most straightforward cases, the order is approved and sealed without any hearing.

What the judge is looking for

A judge reviewing a consent order application will consider whether the agreement is:

• Clearly expressed and technically correct
• Broadly fair in all the circumstances
• Made by both parties freely and with understanding

A judge is not there to renegotiate your deal — if the terms are broadly fair and both parties have agreed, the order will usually be approved.

After the consent order is approved

Once approved, the court seals the order and returns copies to both parties. The order is then legally binding.

Keep the sealed copy safely — you may need it in the future to enforce compliance or to show it exists.

If one party doesn’t comply

If the other party fails to comply with the terms of the consent order, you can apply to enforce it. The court has a range of enforcement powers depending on what is being enforced:

• Property transfers can be executed by the court if a party refuses to sign
• Lump sum payments can be enforced through attachment of earnings or charging orders
• Pension sharing is implemented through the pension provider

Can a consent order be set aside?

In limited circumstances, a consent order can be set aside and remade:

• Non-disclosure — if one party hid assets or provided false information
• Misrepresentation — if one party was misled about the other’s financial position
• Undue influence or duress — if one party was pressured into signing
• Subsequent events — in very limited circumstances, a dramatic change shortly after the order is made (the Barder principle)

Setting aside a consent order is difficult and expensive. Prevention — making sure both parties have properly disclosed their finances — is far better than cure.