Tomlin Order and Consent Order Guide

Divorce is an emotional time as you are experiencing changes to the life you once envisioned. The legal divorce process can also be difficult and complex, making the situation stressful. Having a good divorce solicitor to help guide you through the divorce process can help lift a weight off your shoulders, and give you the peace of mind that someone is by your side supporting you to resolve the divorce with outcomes that suit your needs. In this guide, we discuss Tomlin orders and Consent orders in greater detail to help you understand their purpose.

Consent order after decree absolute

The Decree Absolute only dissolves the marriage. Just because you have closed the door on your marriage it does not mean you have closed the door to your finances.

Severing the matrimonial ties does not prevent either party from making any future financial claims against one another. If you do need to consider the division of the matrimonial assets such as income, property, capital assets, maintenance, debt provisions and pensions. You can try to resolve the finances by attending mediation or initiating discussions with your former spouse via your solicitor. It is also important to ensure that not only do you aim to achieve a fair settlement but to also ensure that you protect your future assets by obtaining a Consent Order.

What is a Consent Order?

A Consent Order is a formal financial agreement which sets out the parties wishes as to how the income, capital assets and pensions are to be divided. Consent orders are legally binding and they record a financial agreement when you divorce. The purpose of the order is to explain how the joint assets will be divided. The order typically covers property, money, investments, savings, pensions, and it may also include details regarding child maintenance or spousal maintenance payments.

Once an agreement has been reached between the parties, your solicitor will draft the Consent Order embodying the terms of the agreement. The Consent Order will also have a Clean Break clause. Once the terms of the agreement have been fulfilled (i.e. a transfer of a property or a payment of a lump sum) the Clean Break will be triggered which will prevent the parties to the marriage from making future claims against one another’s income and assets. Each party will be required to sign the Consent Order which will be submitted to the Court where the Judge will make the Consent Order legally binding.  

What is a Tomlin order?

A Tomlin order is a form of consent order that is used to record an agreement between parties. Sometimes simply referred to as consent orders, Tomlin orders are becoming more and more common in the light of multiple civil litigation cases that are settling before trial.

Do I need a consent order?

By getting a consent order, you will be able to cut any ongoing financial ties between you and your former spouse. In the absence of an order, either party can make a claim against the other, even many years after the divorce has been finalised.

For example, suppose you grow a successful business or even win the lotters. If you don’t have a clean-break consent order, your ex-spouse may have a claim on your future wealth.

However, a clean-break consent order is not useful only in the event you win the lottery. It also provides peace of mind and acts as an ongoing insurance against any future claims for both parties.

Here are some of the most important reasons to get a consent order:

• A court order can alleviate future court litigation because it allows parties to agree on the terms of the settlement.
• Any agreement reached at the time of getting a consent order will be based on the assets and income at that particular point in time. No future financial application can then be made by the parties, which secures your financial future.
• It allows you to enforce the settlement you agreed upon if the other party defaults.
• A consent order creates certainty for the future and allows both parties to focus on more pressing issues, such as co-parenting, for example.

A consent order is the only way to have certainty regarding your financial future. The order comes into effect once the final stage of the divorce is pronounced by the court.

You should get a consent order even if you don’t have any financial assets at the time of your divorce. This is the only way to make sure your former spouse won’t be able to make a future claim on your assets.

The easiest way to agree on the content of a consent order to work it out between yourselves, but if that doesn’t work out, you can do it through family mediation, divorce negotiation, or solicitor-led negotiation. If you can’t reach an agreement via any of these methods, you also have the option to ask the court to make the decision for you.

What if I do not have any assets?

In cases where parties to a marriage do not have any assets. It is essential to obtain a Clean Break Consent Order.  You may think that a Clean Break Consent Order is not required because you trust the other party not to make any future claims. However, there is always a risk that the parties financial circumstances may change in the future for example; you may receive an inheritance or even win the lottery. 

Consent order applications

There is a formal process involved in order to obtain a court order, and the application can be filed with the court after the pronunciation of Decree Nisi in divorce proceedings.

It’s often advisable to pursue a consent order at the same time you initiate the divorce procedures to make sure there will be no delays in obtaining it. Our divorce solicitors at Austin Kemp can help you through the process, which includes filing forms and obtaining signatures from both parties.

Because a Tomlin order is a document mutually agreed between the parties, there shouldn’t be any reason for it not to be approved, provided the documentation has been filed correctly and the court fee paid.

Is it possible to change a consent order?

Once a consent order has been approved and sealed by the court, it becomes a legally binding document, which can’t be normally changed. There are, however, situations where the parties agree to do something different than what they agreed upon in the consent order. Typically, this has to do with property, for example, deciding to buy out your partner instead of selling the family home.

In cases such as this, you will need to change the consent order by having it redrawn and resubmitted to the court. At Austin Kemp, we can advise on your options and help you through the process, while also preparing all the necessary paperwork for you.

Can I get a consent order after the divorce?

Yes, you can get a consent order at any time after a divorce. Even though your financial arrangements should typically be finalised before the court pronounces the divorce final, you and your former spouse can still agree on a consent order any time after the divorce.

Is there a time limit to make a Financial Claim?

Section 28 (3) of the Matrimonial Causes Act 1973 confirms the only time where this may not apply is when the respondent in the divorce proceedings decides to remarry prior to making a financial claim in relation to the previous marriage. The remarriage will bar you from applying for periodical payments, a lump sum, pension attachment or a property adjustment order in their favour from their previous marriage.

Below is a perfect example as to why you should settle your finances before you decide to remarry.

In the case of E v. E [2008] 1 FLR 220 wife had agreed to pay her husband a lump sum of £250,000. The Consent Order would become effective from the date of it being approved by the Court. The Husband remarried in Bali and his solicitors filed his Form A three days later. The Court held that the Consent Order had not been approved therefore, his previous wife did not have to pay him the lump sum.

What are the risks of not obtaining a Consent Order?

Not obtaining a Consent Order leaves the parties claims against each other’s finances open. For example, if you win the lottery years after finalising the divorce. The other party to the marriage can make a financial claim against your winnings.  

To avoid undue stress and unwanted legal costs in future. We recommend that you deal with the finances at the same time as the divorce proceedings as you can rest assure that you are protecting your current and future assets.

What happens if one of the parties breaches a consent order?

A breach of the consent order happens when one of the parties fails to carry out the obligations set in the order. When this happens, the other party can ask the court to have the order enforced. This means that if the court agrees that your former partner has indeed breached the terms of the order, they will be required to meet the initial terms and also cover the costs of bringing the case to court.

There are situations where the person who breached the order did so because they were unable to fulfil their responsibilities. For example, they may have lost their job, which has made it impossible for them to continue to make maintenance payments. In this case, the court may allow them to stop making payments until they find a job.

However, if there are no special circumstances, a Tomlin order is a contractual document, which means that if one party breaches it, the other party can enforce the terms without having to commence fresh proceedings.

For advice on dealing with your finances after a divorce and getting a consent order, get in touch with our divorce solicitors today.

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Contact our expert divorce solicitors for advice on financial disclosure

For more information on financial disclosure during divorce call our divorce solicitors on 0845 862 5001 or email mail@austinkemp.co.uk.

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