DIY Consent Order for a 'Clean Break' financial settlement?

[RSTurboPaul]

Hi all,

Asking for a friend... (yes, really! lol)


Family member has submitted a Divorce Petition on 5-year Separation grounds.

The other party has (remarkably) agreed to a 'Clean Break' Consent Order / financial settlement.


Family member is not a Powerfully Built PistonHeads Director so cannot just throw money at it.

The plan is therefore to draft a 'DIY' consent order based on (hopefully...) correct information gleaned off the internet etc.


However, I am aware such a venture has potential for... failure.


Please may I therefore beg the wise denizens of PH for their consideration of the following?


The Wikivorce website has a template for a 'clean break' consent order:
https://divorce.wikivorce.com/guides-financial-set...

The quickest/easiest solution would seem to be to use the template in its entirety?


But within that template it references the following legal Acts:

- The Matrimonial Causes Act 1973 s23(1)(a) or (b).section 24 or section 28 1(a),

- The Pension Act 1995 or The Welfare Reform & Pensions Act 1999.

- The Inheritance (Provision for Family and Dependents) Act 1975, section 15 / section 2

Are they all the Acts one needs to reference / take account of within a Consent Order / financial settlement?


Apparently closing with the following sentence means no further claims can be made in the future?

- "And all further claims are now dismissed by both the Applicant and the Respondent."


I recall Breadvan72 saying something along the lines of a 'plain english' agreement should (technically speaking) be perfectly fine and accepted by the judge, but it feels like that would be far too simple and not stand up to challenge by a legal type further down the line...


Any advice or thoughts are very welcome, thank you very much in advance for any input!

[Austin_Metro]

They should both pay for advice.

That way it will contain the tried and tested wording AND both will have benefitted from independent advice, meaning there is less scope to say “I didn’t understand” etc.

[V8 Bob]

So long as both parties can agree an amicable separation of assets then the legal bill need not be large but it is important that they both have advice and that the divorce is done legally and binding and that the financial agreement is again documented legally and made final so that there can be no future claims should one party subsequently receive a windfall.

The key being that they agree everything before getting lawyers involved.

[RSTurboPaul]

Many thanks for the responses, gents, they are much appreciated.


Things feel a bit chicken-and-egg TBH.

Nothing 'official' can be drawn up until things are agreed, but the other party is unlikely to agree anything unless it is drawn up 'officially'...


I think the way forward for the chap is to wait until the Nisi goes through (which I presume it will with no hassles because it's a 5-year petition) and then knock up a template using the Wikivorce wording (or similar if it can be found online) and put it to the other party.

I presume the other party will be paying for some solicitor time to review any proposal, so if they do agree the contents, the chap will likely then scrape the cash together to get an hour with a solicitor to confirm if anything is missing from the draft/template.

Hopefully it would be correct first time, as the back and forth hassles seem to be what takes the time / money...


Thanks again, gents!

[Jeremy-75qq8]

Bear in mind it is not valid until stamped by the court, and the court usually ( including mine) wants a specific confirmation that both parties have had legal advise given the rights they are waiving.

Financial forms also accompany the application.

I don’t like the legal profession and much of what they do is template driven, but in this case I would pay for them to finalise the agreement.

[soprano]

OP - the link you have provided is some way out of date, not least because it refers to the County Court which has not had jurisdiction over family law matters since, I think, 2013.

The modern compendium of orders is provided here:

https://www.judiciary.uk/publications/practice-gui...

Look at:

Standard Orders Volume 1 > then download 2.1

The clean break provisions are at paragraphs 97 and 98. The fact there are 96 preceding paragraphs should tell your friend that this is not straightforward and that he/she should take professional advice!

[RSTurboPaul]

soprano said:

OP - the link you have provided is some way out of date, not least because it refers to the County Court which has not had jurisdiction over family law matters since, I think, 2013.

The modern compendium of orders is provided here:

https://www.judiciary.uk/publications/practice-gui...

Look at:

Standard Orders Volume 1 > then download 2.1

The clean break provisions are at paragraphs 97 and 98. The fact there are 96 preceding paragraphs should tell your friend that this is not straightforward and that he/she should take professional advice!

Ah yes!

I have seen the standard orders before because I looked through them when helping the chap with the Child Arrangements Order process (stressful... lol) but I had forgotten about them.

Thank you for the reminder and pointing towards the right bits, I will have a look through and see what we can do!

[RSTurboPaul]

Jeremy-75qq8 said:

Bear in mind it is not valid until stamped by the court, and the court usually ( including mine) wants a specific confirmation that both parties have had legal advise given the rights they are waiving.

Financial forms also accompany the application.

I don’t like the legal profession and much of what they do is template driven, but in this case I would pay for them to finalise the agreement.

Neither party really has a pot to piss in, lol, so I'm hopeful there will be no hassles in getting a Clean Break order granted, but I'm also aware that legal stuff is complex and sometimes surprising...

I had thought that the financial disclosure forms didn't need to be done if a Consent Order was agreed and submitted, but I appreciate that the Judge will want to be sure that one party isn't a gazillionaire and leaving the other destitute!

[soprano]

The form you need to submit with the form A and consent order is form D81 (which sets out the parties finances)

[RSTurboPaul]

soprano said:

The form you need to submit with the form A and consent order is form D81 (which sets out the parties finances)

Thanks!

I think I've downloaded that so will get the chap to fill it in.


I have been trying to sift through all the info / guidance and produce some sort of flowchart / step-by-step all-in-one process, but they don't make it easy... lol

[madmatteo]

RSTurboPaul said:

soprano said:

OP - the link you have provided is some way out of date, not least because it refers to the County Court which has not had jurisdiction over family law matters since, I think, 2013.

The modern compendium of orders is provided here:

https://www.judiciary.uk/publications/practice-gui...

Look at:

Standard Orders Volume 1 > then download 2.1

The clean break provisions are at paragraphs 97 and 98. The fact there are 96 preceding paragraphs should tell your friend that this is not straightforward and that he/she should take professional advice!

Ah yes!

I have seen the standard orders before because I looked through them when helping the chap with the Child Arrangements Order process (stressful... lol) but I had forgotten about them.

Thank you for the reminder and pointing towards the right bits, I will have a look through and see what we can do!

It sounds like you are on the right lines with the information your friend and his wife will need to present to the Court. However, be warned, it is crucial that the clean break order (if this is finally agreed) is drafted correctly with a dismissal of all relevant financial claims which the parties have against one another. If this is not done, it could result in some (or even all) claims being inadvertently left "open" which, in England and Wales, can potentially last forever - even after the divorce is concluded by pronouncement of Decree Absolute.

I have seen some absolutely awful consent orders (whether clean break or otherwise) which are sometimes drafted by the parties themselves or, my personal favourite, the online divorce websites who claim to be (or have) experts in such matters.

It may be worthwhile your friend or his wife at least speaking with a family law solicitor - many of whom do not charge for the initial consultation (myself included) - to see what their options are and the likely costs involved.

If your friend and his wife do go ahead, then it will need to be a draft consent order referring to the family court (as alluded to already) with the relevant clean break clauses in place - if these are to be the final terms. Then they must also both complete and sign a D81 Statement of Information to be filed with the Court alongside the signed consent order.

Final words of advice - tell your friend to tread carefully. It may seem that saving some money now will help but only if it is done correctly. Get it wrong, and the implications could be extremely grave in the future if the financial claims are not properly dismissed to achieve a true clean break!

[madmatteo]

madmatteo said:

RSTurboPaul said:

soprano said:

OP - the link you have provided is some way out of date, not least because it refers to the County Court which has not had jurisdiction over family law matters since, I think, 2013.

The modern compendium of orders is provided here:

https://www.judiciary.uk/publications/practice-gui...

Look at:

Standard Orders Volume 1 > then download 2.1

The clean break provisions are at paragraphs 97 and 98. The fact there are 96 preceding paragraphs should tell your friend that this is not straightforward and that he/she should take professional advice!

Ah yes!

I have seen the standard orders before because I looked through them when helping the chap with the Child Arrangements Order process (stressful... lol) but I had forgotten about them.

Thank you for the reminder and pointing towards the right bits, I will have a look through and see what we can do!

It sounds like you are on the right lines with the information your friend and his wife will need to present to the Court. However, be warned, it is crucial that the clean break order (if this is finally agreed) is drafted correctly with a dismissal of all relevant financial claims which the parties have against one another. If this is not done, it could result in some (or even all) claims being inadvertently left "open" which, in England and Wales, can potentially last forever - even after the divorce is concluded by pronouncement of Decree Absolute.

I have seen some absolutely awful consent orders (whether clean break or otherwise) which are sometimes drafted by the parties themselves or, my personal favourite, the online divorce websites who claim to be (or have) experts in such matters.

It may be worthwhile your friend or his wife at least speaking with a family law solicitor - many of whom do not charge for the initial consultation (myself included) - to see what their options are and the likely costs involved.

If your friend and his wife do go ahead, then it will need to be a draft consent order referring to the family court (as alluded to already) with the relevant clean break clauses in place - if these are to be the final terms. Then they must also both complete and sign a D81 Statement of Information to be filed with the Court alongside the signed consent order.

Final words of advice - tell your friend to tread carefully. It may seem that saving some money now will help but only if it is done correctly. Get it wrong, and the implications could be extremely grave in the future if the financial claims are not properly dismissed to achieve a true clean break!

I would just add that the Form A application is not always needed by all Courts. It's a bit of an archaic rule but if one is filed, then it is only necessary to do so for the Respondent in the divorce (i.e. the party who received the divorce petition and not the one who started it). The Form A must then be marked on each page "For dismissal purposes only" since that's it's only purpose where there is an agreement. Otherwise, they would be starting full financial court proceedings.

Do note, the above is on the basis that the financial claims at Part 10 of the divorce petition have been ticked by the petitioner (i.e. the person who started the divorce). If these were not ticked, then they should also complete and file a Form A for dismissal purposes so as to "open" and "dismiss" their financial claims. If, however, the financial claims are ticked in the divorce petition, a Form A from the petitioner is not necessary.