A new Form D81, the document that sets out the financial and other information in support of an application to approve financial consent orders, has been published by Mr Justice Mostyn, the Financial Remedies Financial Lead Judge and HHJ Hess, the Deputy National Lead Judge. All applications for approval of consent orders should use this new Form D81 in place of the previous version, although the old version will still be accepted if signed on or before 18th February 2022. All applications for consent orders after that time must use the new Form D81. It seems clear that this is revision is an important part of the modernization of the consent order approval and, in particular, will complement the digital / on-line consent order system that has been rolled out nationally and which is now firmly up and running. In addition, the standardization of the way that financial material is submitted to the courts that the new D81 demands also echoes the new ‘efficiency’ edict, requiring parties to submit joint asset schedules for FDR’s and Final Hearings and the like in a highly prescribed way. There is a common motivation behind these changes, namely to reduce the work demanded of Judges and to reduce the burden on hard-pressed judges.
The new form D81 is 23 pages long whereas the old D81 was just 6 pages long. Inevitably the new D81 includes all the previous technical content, ensuring notices have been served on mortgagees and pension providers, but much has been added. So what is new in this revised D81? In short – quite a lot!
Firstly, it is a lot longer and demands a great deal more detail, in particular as to the parties’ current income. The detail to be provided in relation to each parties’ current income is significantly greater than before and now requires the parties to submit information as to the impact of child support assessment by the CMS and also the impact of interim spousal maintenance. Indeed the new Form also provides for approval of orders for interim maintenance, a welcome development that should speed up such approvals.
Secondly, and crucially, the new D81 requires a much more detailed analysis of the impact of the proposed consent order. In relation to capital orders, it is now necessary to describe in some detail (a) the extent of any departures from equality and, where they exist, (b) to explain them. As a Deputy District Judge sitting in the Central Family Court this is very welcome as, anecdotally at least, one of the most common reasons for returning a proposed consent order was the failure to explain a significant departure from equality, especially where the parties were unrepresented.
Thirdly the same level of detail is now also demanded as to the net effect of maintenance proposals. This is new and will require a good deal of detailed analysis by those filing in the form but is also welcome. There is, of course, no ‘yardstick’ as to equality of income but nevertheless all judges considering proposed consent orders are currently having to undertake their own ‘net effect’ tables to ensure that the proposals seem fair. The new D81 shifts the burden for doing so to the parties and should make the task easier for Judges.
Fourthly, where the proposed consent order includes an income clean break, the new form requires the parties to explain why that income clean break is fair and how the parties will meet their own income needs in the future. Again these are questions that Judges will also ask themselves when faced with a proposed consent order. The old D81 did not require any explanation of the clean break and the failure to provide one has, in the past, been a reason for orders to be returned to the parties for an explanation to be provided.
Fifthly the new D81 requires the parties to explain where they will each live in the future, where their children will live and who will own their property and who will be renting. Judges often dislike outcomes which involve a significant inequality of housing as between the parties’ future housing and this increased detailed seems intended to ensure such arrangements are not unwittingly approved.
It is clear that the D81 will take longer to complete and so will add to costs in those cases solicitors are preparing the document. However, the intention is to ensure that fewer consent orders are returned by Judges unapproved and demanding more information. The most frequent reasons that orders are not approved, particularly unexplained departures from equality of capital and income should now be a thing of the past. As a consequence the consent approval system should be quicker to operate and avoidable requests from judges for more information should now be significantly reduced.
by David Burles Barrister and Deputy District JudgeD81 Form