The question: Do I need to get a consent order following my divorce?

“I have recently been divorced and my solicitor has told me that I need to get a consent order in relation to the finances.”

“I have an agreement with my husband that he will keep his pension and I will keep the house.”

“I am happy with this deal and it has now been recorded in solicitor’s letters. I am responsible for the mortgage and could really do without the additional expense of having a consent order. Therefore, my question is whether it is really necessary?”

The answer:

In the vast majority of cases the answer is plainly “yes.”

The reason for this is that any agreement between you and your husband is not binding even though it might have been formally recorded and agreed in letters between the solicitors. The danger you have is that your husband might change his mind and decide that he does want a share of the house after all. Even if many years have passed, and you have both moved on with your lives, he can still make an application to the court in order to ask a judge to decide what he should get. If you got most of the assets then the judge could, potentially, decide that there should be a readjustment even if the assets/asset that you got, as part of the deal, has been transferred to your name etc.

The only way to ensure that your agreement is binding is to have it incorporated in a court order, known as a “consent order”, which confirms the terms of the agreement and states that the financial claims that you and your husband have against the other are dismissed. This then achieves a clean break and means that neither of you will be able to make any further claim against the other in the future even if there has been a dramatic change in the circumstances of one of you.

The case of Lambretta fashion tycoon Glen Briers highlights the issue. 

This couple married in 1984 when they were both employed as teachers. Mr Briers then started a clothing business, working from his garage, with it is said a start-up fund of only £81! By the time the couple separated in 2002 the business was fairly successful and the Briers reached an agreement whereby Mr Briers provided his wife with a lump sum to pay off the mortgage of about £150,000 and agreed to her keeping the family home which had a value of about £700,000. In exchange, he would keep his business. The parties obtained the decree absolute of divorce in 2005 and no doubt Mr Briers thought that was the end of the matter.

On the face of it, this was not a bad deal as far as Mrs Briers was concerned bearing in mind the circumstances of the family at the time. However, neither party obtained a consent order.

Over the next few years the clothing business went from strength to strength with it being recorded that it had an annual turnover of £30 million!

Mrs Briers took further legal advice and was no doubt told that she could make a financial claim, arising out of the divorce, against her former husband’s fortune.

Court proceedings were issued with Mr Briers arguing that she should be bound by the original agreement but the court, quite correctly, said that as there was no consent order her financial claims were still “live.” In 2015 (10 years after the divorce) the court awarded her a whopping £1.6m together with a proportion of his shares and endowment policy.

The Conclusion

Whilst Mrs Briers clearly benefitted from the absence of a consent order, in the vast majority of cases it is sensible to have an order, bringing about a dismissal of the financial claims, so as to achieve both certainty/ finality and to prevent one party from making a claim, out of the blue, against the other decades later.

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If you would like to discuss any issue arising out of this article, please contact Benjamin Carter in the family team by email or telephone 020 8514 9000.