Form D81 is used to provide information about divorcing parties’ financial situation in support of an application for a consent order.
If you and your former spouse are able to agree on how to split your money and assets on divorce or civil partnership dissolution, you can avoid a contested hearing and the acrimony and costs this can often bring.
However, even though the court’s intervention will not be required to divide up the matrimonial or partnership assets, it will still need to approve a consent order. The court will also need sufficient information about your respective financial worth to be able to assess the fairness of any agreement.
In this guide, we look at the role of Form D81 when applying for a court-approved consent order for a divorce or dissolution.
What is Form D81?
Form D81 is a statement of information for a consent order in relation to a financial remedy in the context of either divorce or dissolution of a civil partnership. This form is designed to provide information to the court about both parties’ financial situation to support their application for a consent order, as submitted to the court for approval.
In many cases, especially where the finances relating to a marriage or civil partnership are straightforward, divorcing parties or former civil partners can often reach agreement as to how to split their money and property without going to court. However, for that agreement to be legally binding, and to prevent any claims in the future from either party, this must be approved by a judge. This means that the parties must complete a statement of information to assist the court in deciding whether the financial and property arrangements that they have agreed upon are fair in the circumstances.
When is Form D81 used?
A divorce or dissolution of a civil partnership does not, in itself, end the financial obligations between former spouses or civil partners. This means that where a marriage or civil partnership has permanently broken down, the couple will need to decide, or ask the court to make a decision, as to how to split the marital or partnership finances.
In circumstances where an agreement can be reached between the parties, they will still need to have a draft consent order drawn up, setting out in writing the terms of their agreement to put before the court for approval. They will also need to complete Form D81, ideally on a joint basis, to provide the court with a clear picture of the financial worth of each party, so that an assessment can be made as to whether the agreement reached is fair.
It is only with the court’s approval that a consent order will be legally binding, and therefore enforceable. This will also protect both parties from any financial claims that they may have against each other after the divorce or dissolution is finalised, for example, any claims on future earnings or in the event of a financial windfall.
When is Form D81 needed?
The parties can ask the court to approve a draft consent order once they have received their conditional order (previously known as the decree nisi in the context of divorce), and ideally before they have applied for the final order (previously the decree absolute).
On 6 April 2022, new no-fault divorce legislation came into force, and with it new divorce terminology, where the former expressions ‘decree nisi’ and ‘decree absolute’ have now been replaced with ‘conditional order’ and ‘final order’. Provided a conditional order has been granted, and a consent order has been drafted, the parties are encouraged to fill in Form E as one joint form, unless they have good reason not to do so.
Is Form D81 mandatory?
Form D81 must be filed with the court, together with the draft consent order, for the court to be able to approve that order. However, even though the parties have agreed the terms of their financial settlement in principle, they still have a duty to the court to make full disclosure of all the relevant facts, and to be honest and accurate in so doing. This is because both parties will be required to sign Form D81, verified by a statement of truth.
Any failure to disclose all relevant facts could lead to an order being set aside, and the defaulting party being responsible for the costs associated with this. A dishonest party, who is found to have been untruthful, may also be prosecuted for contempt of court.
What information does Form D81 ask for?
Form D81 sets out a number of detailed questions pertaining to the marriage or civil partnership, as well as the financial circumstances of each party, including:
Details of the marriage or civil partnership: including the date the parties got married or formed a civil partnership; the date the parties started to live together permanently, if earlier; the date of separation; the date of the conditional order of divorce or dissolution; whether or not there is a consent order for interim maintenance; and whether the final order of divorce or dissolution has been granted.
Dates of birth of both parties and any relevant child(ren): including the names and dob of any children under the age of 18, or any other children dependent on the family.
The financial agreement: including how the proposed consent order attached to Form D81 was reached, for example, through discussion between the parties, negotiations through solicitors, through out-of-court dispute resolution or via some other way.
The parties’ current capital and income: including any properties and mortgages; any money in either bank accounts, savings, investments or ISAs; any liabilities such as loans, overdrafts and credit card debts; and pensions and Pension Protection Fund (PPF) compensation valuation.
The parties’ net income: including earned income after tax and NI contributions; state benefits, including child benefit; pension income and PPF compensation payments; interest from bank accounts; and any other sources of income, such as trust fund income.
Any maintenance payments: including any child support/child maintenance payments made between the parties; any spousal maintenance paid between the parties; any child support/child maintenance payments received from someone who is not a party to the proceedings, such as a former spouse or partner; and any child support/child maintenance payments made by either party to someone who is not a party to the proceedings, and whether paid under an informal arrangement or formal agreement.
Capital and income after the implementation of the proposed order: this needs to show the impact of the proposed consent order on the capital and income between the parties, for example, a spreadsheet showing a net effect calculation could be attached to Form D81 to show the financial outcome of the consent order.
Any other matters that the court should consider: including things like medical conditions, any change of employment, any significant change in circumstances, or any agreement already reached between the parties, such as a pre-nuptial agreement, a post-nuptial agreement or a separation agreement.
A summary of the main reasons for the proposed division of assets: including, for example, meeting a particular housing or other need, either dividing assets equally or dividing assets unequally for any given reason, or making an assessment of lower or higher earning capacity. If the proposed consent order offsets pension assets against capital assets, a brief explanation should be given as to how the offsetting agreement has been reached. Offsetting means that one party keeps some or all of their pension, in exchange for the other party either keeping or receiving other non-pension assets.
The effect of any clean break agreement: if the proposed consent order dismisses any maintenance claims, a brief explanation should be given as to how each party will support themselves, ie; if there is to be a clean break.
The proposed living arrangements: including the basis of occupation of each property, such as owner-occupied or as a tenant. If the children are to live with both parties, their primary address should be given or a statement that they will live equally with both.
New relationships: including whether each party has an intention, at present, to either remarry or enter into a new civil partnership, or to cohabit with someone new. Each party should also state if they are currently in a cohabiting relationship, or if they have already remarried or formed a civil partnership and, where relevant, the date of any marriage or civil partnership, or the upcoming date of any marriage or partnership.
Finally, the form ask questions about whether notices have been given to mortgage and pension providers in the context of any proposal to transfer property or pension share.
What happens after Form D81 is submitted?
The proposed consent order must be attached to Form D81 and, together with Form A (notice of an application for a financial order), submitted to the court for approval. However, this does not guarantee that a judge will approve the proposed terms. The court must be satisfied that the agreement is fair based on both parties’ sets of circumstances.
It is important that the draft order is as clear as possible, where it is not uncommon for unrepresented parties to mistakenly believe that they have achieved a clean break, yet have left themselves exposed to future claims against each other. As such, it is always best to secure expert advice and assistance to have a professional draft the consent order in the correct terms to reflect the true intentions of the parties, and to help complete Form D81.
Typically, one of the most common reasons that a court returns a proposed consent order is a failure to explain any significant departure from equality, especially if parties have not sought independent legal representation. When completing Form D81, it is important to include information about why the parties have come to the financial split they have decided on so that a judge can agree that this is fair and understand the reasons for this.
Seeking independent legal advice will also show the court that each party to the consent order has had the contents explained to them, and that they are aware that they will be legally bound by this agreement, if approved. As such, the court is far more likely to approve a consent order if both parties have each sought professional advice.
Once the court has received all the relevant documents, including Form D81, the matter will then be listed before the court, although there is usually no court hearing requiring the parties’ attendance. Instead, a judge will review the application and Form D81, and approve the consent order to make it legally binding if they think that it is fair.
What is the difference between Form D81 and Form E?
The statement of information for a consent order in relation to a financial remedy in Form D81 is a summary in a prescribed format of both parties’ financial situation at the point of lodging the agreement. Form E is the form that must be completed if the parties are unable to agree terms and, as such, require the court’s intervention to make a financial order.
Given that the court will require a complete picture of the couple’s finances to be able to make a decision as to a fair split of the marital or partnership assets, Form 8 is more in-depth, not only requiring far more detailed financial disclosure, including the parties’ financial history over the past 12 months and in the foreseeable future, but also extensive documentation in support. In contrast, even though Form D81 was revised and expanded earlier this year, it simply provides an overall illustration of the parties’ financial worth. However, usefully for the court, it now also explains the practical impact of the consent order on family finances and living arrangements to help expedite the approval process.
Importantly, Form 8 must be completed separately by either party, before being filed with the court and simultaneously exchanged with each other, in anticipation of a contested hearing. Form D81, on the other hand, can be completed on a joint basis, as agreement has been reached, at least in principle, subject to the court’s approval of the proposed terms.
Form D81 & Consent Orders FAQs
What is Form D81?
Form D81 is a statement of information for a court-approved consent order in relation to a financial remedy in the context of divorce or dissolution of a civil partnership, designed to provide information to the court about the parties’ finances
What is the difference between Form E and D81?
Form E must be completed when asking the court to make a financial order on divorce or dissolution of a civil partnership, whereas Form D81 must be completed when asking the court to approve a consent order.
Is a D81 mandatory?
Form D81, the statement of information for a court-approved consent order, must be filed with the court, together with the draft order, for the court to be able to approve the parties’ proposed agreement. However, this can be completed jointly.
What is a statement of information for a consent order?
A statement of information for a consent order is a form, known as Form D81, that the parties to a divorce or dissolution of a civil partnership must complete when asking the court to approve any financial agreement reached.
The matters contained in this article are intended to be for general information purposes only. This article does not constitute legal advice, nor is it a complete or authoritative statement of the law, and should not be treated as such. Whilst every effort is made to ensure that the information is correct, no warranty, express or implied, is given as to its accuracy and no liability is accepted for any error or omission. Before acting on any of the information contained herein, expert legal advice should be sought.