What is a consent order?
A consent order, as it is known in England and Wales, is a type of financial agreement that deals with what happens to your assets during your divorce or the dissolution of your civil partnership. It is very similar to a Separation agreement, however, the difference is that a consent order can be sent to court, where a judge is asked to approve it. Once the consent order is signed and approved by the judge, it is legally binding on both individuals.
What is a minute of agreement?
A minute of agreement, as it is known in Scotland, much like a consent order, is a type of financial agreement that deals with what happens to your assets during your divorce or the dissolution of your civil partnership. A minute of agreement can be agreed upon between the parents or drafted with the help of a solicitor. The minute of agreement is then registered in the Books of Council and Session, which allows the minute of agreement to be enforced by the courts should either parent fail to comply with it. As a result, it is very similar to a separation agreement, however, a minute of agreement is legally enforceable by the courts.
What is included in a consent order and a minute of agreement?
Both spouses must agree on what will become of the matrimonial home, eg whether it will be sold or left to the spouse who has custody of the children (where relevant). You might also consider whether the other spouse will begin or continue to make mortgage payments.
You will need to determine how assets such as a family business, shares or insurance policies will be distributed upon divorce.
Personal property includes things such as furniture and fine china. Generally, this involves each party taking ownership of their own goods.
Couples making a break in retirement need to decide whether they’ll pursue pension sharing or perhaps offset their funds against other assets.
The couple needs to decide whether one spouse will pay the other maintenance. This is particularly relevant where children are concerned (ie it is usually the parent with child custody who is deserving of maintenance). You must also agree when such payments can be completed (eg upon death, or when the child reaches 17).
Where relevant, you will need to determine who takes ownership of the family pet.
What is a clean break?
A clean break is a clause in a consent order or a minute of agreement that dismisses rights to make certain types of claims arising out of your marriage or civil partnership.
There are two types:
a full clean break - dismisses future maintenance and capital claims
a capital only clean break - dismisses future capital claims only. This tends to be used where there will be ongoing spousal maintenance
It can mean dismissing future claims either during your lifetimes, after your deaths or both, and can be included in the order for just one of you or both. A clean break is only included once you have agreed on how to divide your assets (or have already divided them and simply want to safeguard against future claims). Neither party will have a claim on the other spouse's assets after they die.
Can't I just have a separation agreement instead?
If you have a financial agreement but do not want to send it to the court to be approved, you can still record the agreement in a Separation agreement. However, only a judge can order a clean break, which prevents either of the spouses from making future claims against the other.