Most partners are able to come up with an agreement on their own and part ways amicably. However, for some, the marriage was such a bad and painful experience that they are spoiling for a fight and get back at the other partner. The divorce is acrimonious with claims and counter-claims.
Finally, the divorce is granted by the court. However, even though the divorce has been finalised, what most people do not realise is that the settlement they mutually agreed upon is not the last word. Even after many years, the partner who has not remarried still retains the right to go to the court asking for more. When this happens the partner caught unwary is flummoxed and feels cheated. The only way to avoid this is to sign something called a consent order. A consent order (also called a Clean Break Order) is an agreement between two spouses that prevents either of them from going to the court after being divorced to claim more money, maintenance or share of the property from the other.
It is a legal document signed by both the parties that is enforceable through the court. It ensures that the separation of the partners is full, final and absolute and that after divorce each of them loses the right to any further claims or rights from the dissolved marriage. Consent order is different from a separation agreement. The former is a way of ensuring that the terms of the latter can be legally enforced in a court of law and its provisions put into effect. The consent order is included in the divorce proceedings after the Decree Nisi has been granted. A consent order is an important document.
The reason is that the partners going through a divorce have the right to one order of the court that will separate and rearrange their assets. Once a divorce has been granted and the partners separated, this right to a final financial settlement does not die. Any partner – if he or she has not yet remarried – can approach the court years later and ask for a full and financial settlement of the assets of them both. The problem is, the court while passing an order takes the present assets into account, not those that existed on the day divorce was granted. In the intervening years, financial situation of the partners may have changed drastically. One of them may have won a lottery or risen high in career with a good salary and accumulated a lot many assets.
When one partner approaches the court in such a case and asks for a full and final settlement of assets, the other partner stands to lose as much as half of the entire wealth. This can be a bolt from the blue for anyone. A simple separation agreement does not obviate this risk and the right to a court order for the final settlement of property remains open to the partners. This right can be permanently closed only through a consent order. Many partners even in divorce retain sufficient trust and intimacy toward each other and consider a verbal arrangement or a separation agreement enough to ensure a division of marital assets.
"The matter is finally settled between both of us," is their belief. But what they do not realise is that after four or five years, things – and feelings – can change drastically. Not signing a consent order at the time of divorce is exposing them to unnecessary risk and is quite unsafe for their financial future. However, consent orders can only work where both the partners have managed to come to a mutual agreement about division of assets, maintenance and arrangement for children. If there is a dispute regarding any of these, then obviously one will refuse to give consent to the other's proposals and no such agreement can be signed. Such disputes can only be resolved through the court.
The consent order contains the agreement – duly signed – that the partners have arrived at regarding the division of property (movable like vehicles and immovable like house), life insurance policies, shares, pensions, bank accounts and spouse and child maintenance. It is accompanied by a statement of information that lists personal details about the spouses, their income and assets, and their future plans regarding remarrying and relocating. Both the consent order and the statement of information are then sent to the court that goes through them and decides if the agreement is fair and reasonable. If the court has no problems with it, the agreement is duly authorised by it. With this, the consent order comes into effect and becomes a legally enforceable document.
James Walsh is a freelance writer and copy editor. If you have recently become divorced a Clean Break Agreement is essential to prevent your former spouse from making a claim to your future assets, for more information see http://www.clean-break.co.uk