Drawing your consent order

Decide what you want

This article covers how best you can use mediation to settle outstanding issues when your personal relationship falls apart. It does not matter what that personal relationship is. Mediation is just as useful when you separate having lived together for a few years outside of the legal arrangement as it is when you have been married or in a civil partnership.

Just because you have decided to separate your lives, does not mean that you are looking for a fight or that one of you feels unfairly treated. Nonetheless, there are often good reasons to obtain help from a mediator in sorting out your financial and other affairs. 

• You may want to be sure that you are never accused of having bullied the other of you into your final arrangement.
• Your financial affairs, taken together, are really quite complicated so help from a business-aware mediator will definitely help you to sort out and agree what is fair;
• You may live far apart and need help through online mediation;
• Even if you trust your ex-partner, you may feel that he/she is better informed about financial matters then you are and that you would take comfort from negotiating before a mediator;
• You have a horrible feeling that your ex-partner may not have disclosed everything about his/her financial affairs and you feel that a mediator might encourage him/her to put cards on the table;
• Everything is absolutely agreed. You would like a mediation meeting where you can just tie up a few loose ends, make sure the language you have used is correct and run over a few final questions with a mediator;
• Your relationship with your ex-partner is smashed. There is no way you can talk together because the shouting match starts immediately. Mediation is the only way.

Whatever the reason for your coming to mediation, at the end of the sessions, it is usual for the mediator to draw in the threads and help you to prepare an agreement which covers all of the points you have resolved.

The mediator will not be acting for either of you in any professional capacity in this. She/he will always be neutral. That means she/he will not add legalistic points, unless they are absolutely neutral too. Your agreement will be bare bones, and in simple English. When you both have signed and dated it, it will be absolutely binding – subject to the extremely important exception we discuss below.

If you need a court order, mediation is compulsory

When two people separate, the Court is available either to make judgements on specific issues or alternatively to approve terms which have been agreed by the parties.

Your dispute is likely to contain elements of different areas of your lives. If necessary, and you have the money, you could apply to the Court for an order to resolve almost anything. In practice 99% of divorcing couples do not take their financial claims to court. Instead, they get together with a mediator, agree the terms of settlement and then put those terms directly to a judge and ask for the court order in those terms.

Before the Court will accept the claim against your former spouse or partner, you must prove that you have attempted to settle your dispute through mediation. Even if you expect to be able to settle your issues by working together without outside help, that is possible that the Court might still ask for confirmation that you have been through a mediation process.

This article therefore covers only your route through to obtaining a court order covering the whole range of your financial affairs in terms you have agreed. The benefit of a court order is that it binds the parties either irrevocably or until one of them applies to the court for change.

Mediation is by far the most efficient way to settle any dispute – no matter how high is the value of the subject matter. To settle your dispute in court is expensive – indeed beyond the means of many people.

You have two options for mediation. Either you could attend a Mediation Information and Assessment Meeting (MIAM) to explore your dispute. This is a court sponsored system. The alternative is to instruct the mediator outside of the MIAM system.

Most divorce settlements lead to a financial order because that covers the most important elements of dispute, including arrangements for your children.

The route to obtaining a financial order

The first step to obtaining a financial order (otherwise known as a “consent order”) is to seek the help of the mediator to settle your affairs. Your mediator should be able to help you to dispose of all the elements of your dispute – and not just those about money.

The range of issues which may be in dispute when a couple separate, is vast. The jurisdiction of the court is therefore limited to specific issues such as money.

In practice, all separating couples need a financial order but few need anything more. A financial order will also cover financial arrangements for the children including where they live and who is responsible for their upbringing.

To standardise the procedure for obtaining a financial order, the court asks applicants to complete a very long document (Form D81) and submit it to Court. That form will become the basis of a financial order by consent - aka a “consent order”. The form covers an extremely wide range of possible financial issues, so most of the data boxes will remain empty when you complete it.

The court order will cover the financial matters you have agreed to finalise between you, provided the Court has jurisdiction to make them. This could be for simple issues relating to mortgage payments and your home as well as maintenance for your children, transfer of assets and more.

Provided he/she has a good reason, either party can apply to the Court for a different order at any time, including an order for continuing obligations to be discharged entirely.

Close this chapter with a clean break

Your financial order can be either for a “clean break” or for an order which runs for a specific period of time or until the happening of a specified event.

A continuing payment is usually for a monthly sum. The procedure is the same, whether for a continuing payment or a clean break. A continuing payment from one of you to the other for the recipient’s personal maintenance is known as a “spousal maintenance order”.

While a continuing order may be essential in many situations, you should try to agree a clean break. However, that will not prevent you from returning to court at any time to deal with a dispute relating to your children.

It is easy to forget that if you fail to obtain a financial order at all, then either of you can apply to the court for any appropriate order at any time into the future - even many years later.

A clean break not only removes future cost. It also “does what it says on the tin” in that the gigantic stress of the termination of your relationship is finally closed - provided of course that you continue to accept the arrangements you have made for your children.

Orders the Court can make

Whether your financial order is agreed or fought over in the County Court, it will be limited to those items for which the Court has jurisdiction.

The jurisdiction of the Court is limited. Broadly speaking the Court can make an order for these things:

Broadly speaking the Court can make an order for these things:

• Continuing financial maintenance for your child/children or the other of you;
• The sale or transfer of property (land, house, business assets, investments and more);
• The continuing payment of joint third-party debts such as your mortgage;
• Payment of a lump sum of money;
• Division of pension rights – usually on a 50-50 basis.

Note that all of these relate to money. The Judge cannot make an order for some of the things you might decide you would like to record in the settlement of your dispute. They will be outside what the Court is allowed to order.

If the Court is not happy with some element of the draft order submitted, in the first instance it is likely to return it to the sender for an explanation or edit. If that is not adequate, then the Court will ask the parties to attend and explain in person.

Although there is a vast body of case law relating to financial provision, the Court has a very wide discretion within the limits of its jurisdiction and will use common sense in deciding whether your proposals are fair.

Attending before the Judge is not as daunting as most people think. In most cases the Judge merely wants an explanation.

Who draws your order?

You can prepare a Form D81 and submit it to court yourselves or you can instruct a solicitor or barrister to deal with it for you. Even if you have not used professional help for other elements of your divorce or separation there is no reason why you should not obtain professional help for the single purpose of fine-tuning your Form D81 and seeing it through the court process to obtain your final order.

If you want a simple clean break consent order, you can copy the terms of the example at: https://www.wikivorce.com/divorce/Financial-Settlements/Financial-Settlements/Consent-Order-Simple-Example.html

A more usual one is at: https://www.wikivorce.com/divorce/Financial-Settlements/Financial-Settlements/Consent-Order-Typical-Example.html . The content is clear, but the document is drawn in legalese which is absolutely unnecessary. For example, instead of “Upon it being recorded” you could say “The parties have agreed”.

They have completed the example form in extreme legalese which is not necessary. For example, instead of “Upon it being recorded” you could say “The parties have agreed”.

Our recommendation is that you could easily draw and submit the simple version yourself but that if your affairs are more complicated then you should EITHER instruct a solicitor or barrister to do it for you OR use an Internet service like Wikivorce or www.divorceonline.co.uk

If you use an Internet service, remember that although you are dealing with people who are likely to be extremely efficient, they know nothing about your personal affairs except what you tell them. They are simply rearranging the text that you have given to them. That means if a form you complete fails to have a box for something important to you, it will not be included in the order.

Using your own solicitor or barrister

If both of you have instructed a solicitor then they will agree between themselves who draws the first version of the consent order, leaving the other to approve it.

If only one of you uses a solicitor and he is instructed to draw the consent order then it is obviously essential that the other of you should read it extremely carefully to make sure it contains nothing that is not agreed or that could be unreasonably controversial.

How your mediator can help

All of the process we have described above must start with mediation.

Our service always includes provision for our mediator to draw up a simple agreement at the end of the mediation session to record exactly what you say you have agreed. He will be careful to avoid fine tuning it by adding any standard legal paragraphs or ideas of his own. His neutrality will always be paramount.

Our mediator will encourage you to check the document carefully – even if it consists only in manuscript notes – and to sign and date it. That document will not constitute your draft consent order but it will provide strong evidence of what you have agreed. It will also provide the basis for you to draw your own consent order or to instruct a solicitor to do it for you.  That will make it difficult for either of you to decide later to instruct a solicitor to press for different terms.

How is our mediation agreement binding?

When you separate, it is unlikely that you will need to discuss only financial issues. That means some of the points you will agree at mediation cannot be carried forward via Form D81 into a final order.

The simple answer is that it is binding

So, on the one hand we have your agreement which covers everything that was in dispute. On the other hand you want a final order from the Court on your financial affairs and the Court is not in a position to give you what you want outside of its financial remit. So the court covers all financial stuff and you get your order. As for the effect on the remainder of the terms that are not covered in the order, they remain legally binding on both of you in basic contract law.

In practice, terms which are outside the financial remit of the Court’s jurisdiction tend to relate to practical matters which would be difficult to enforce in any event. We recommend that they should be included in the agreement as evidence of what has been agreed rather than as a prospective weapon for future litigation.

It is therefore essential that once you have found a mediator, you allow sufficient time not only for the mediation process, but for you to ask the mediator to record all of the smaller points which you have already agreed.

Most people need 2 x 3 hour sessions to cover all of this work.

To move your mediation - and your life - forward, start with your request to us to mediate.

There’s no commitment at this stage, but at least you can then fix a provisional diary date.