How Courts Decide If Your Consent Order Is Fair (Section 25 Explained)

When you submit a consent order to the Family Court, you might assume the judge simply rubber-stamps it. You've both agreed the terms. You've both signed. What's left to review?

Quite a lot, actually. The judge has a legal duty to assess whether your proposed financial settlement is fair — not just whether both parties have agreed to it. Two people can agree to something that significantly disadvantages one of them, and the court's role is to catch that before sealing the order.

The framework the judge uses for this assessment is Section 25 of the Matrimonial Causes Act 1973 — a checklist of eight specific factors that the court must consider before making any financial order on divorce. Understanding these factors doesn't just help you appreciate what happens behind the scenes. It helps you prepare a consent order that addresses the judge's concerns proactively — reducing the risk of delays, queries, and rejections.

What Is Section 25?

Section 25 of the Matrimonial Causes Act 1973 sets out the legal framework that governs all financial decisions in divorce cases in England and Wales. It doesn't provide a mathematical formula. It doesn't say "split everything 50/50." Instead, it requires the judge to consider eight specific factors and reach an outcome that is fair in the circumstances of each individual case.

The judge has wide discretion — which means two judges could look at identical facts and reach different (but equally valid) conclusions. This discretionary approach recognises that no two marriages are the same, and no single rule can produce a fair result for every couple.

Before looking at the eight factors, there's one overriding principle:

The 8 Section 25 Factors — In Plain English

Here's what the judge is actually assessing when they review your consent order and Form D81:

Factor 1: Income, Earning Capacity, Property and Financial Resources

Section 25(2)(a)

The judge looks at what each party has now — and what they're likely to have in the foreseeable future. This includes employment income, self-employment income, rental income, benefits, savings, investments, property equity, business interests, and pensions.

Crucially, the court also considers earning capacity — not just what you earn now, but what you could reasonably be expected to earn. If one party has voluntarily reduced their income (for example, by choosing not to work when they could), the judge may factor in what they should be earning.

What this means for your consent order: The Form D81 must accurately reflect both parties' financial positions. If the figures don't add up — or if one party appears to have significantly understated their resources — the judge will ask questions.

Factor 2: Financial Needs, Obligations and Responsibilities

Section 25(2)(b)

This is the factor that drives most financial settlements in practice. The court asks: what does each party need? Can they house themselves? Can they meet their day-to-day living costs? Do they have dependants? Are there debts that must be serviced?

In most cases — particularly those involving moderate assets — needs is the decisive factor. The court's priority is ensuring that both parties (and any children) can meet their reasonable housing and income needs after the divorce. Only once needs are met does the court consider whether there are surplus assets to divide according to other principles.

What this means for your consent order: If the proposed settlement leaves one party unable to house themselves or meet basic needs while the other retains surplus assets, the judge is likely to query it. Section 10 of the Form D81 — where you explain why the proposed settlement is appropriate — should address how both parties' needs are met.

Factor 3: Standard of Living During the Marriage

Section 25(2)(c)

The court considers the lifestyle both parties enjoyed during the marriage. This doesn't mean the court will guarantee the same standard of living after divorce — that's often impossible when one household becomes two. But it provides context for assessing what's reasonable.

In longer marriages with higher standards of living, this factor carries more weight. In shorter marriages with modest lifestyles, it's less significant.

What this means for your consent order: If one party is proposing to walk away with very little from a marriage where both enjoyed a comfortable standard of living, the judge may ask why. A brief explanation in the Form D81 — even something as simple as "both parties are content with this arrangement and can meet their respective needs" — helps.

Factor 4: Age of Each Party and Duration of the Marriage

Section 25(2)(d)

A 25-year marriage is treated very differently from a 2-year marriage. In longer marriages, the principle of equal sharing of matrimonial assets carries significant weight. In shorter marriages, the court is more likely to restore each party to their pre-marriage financial position — particularly where one party brought significant assets into the relationship.

Age also matters because it affects earning capacity and the ability to rebuild financially. A 55-year-old has far less time to accumulate pension wealth or recover from a financial setback than a 30-year-old.

What this means for your consent order: If the proposed split departs significantly from equality in a long marriage, the judge will want to understand why. Conversely, a 50/50 split in a very short marriage where one party brought all the assets may also raise questions. The key is that the reasoning is visible in the Form D81.

Factor 5: Physical or Mental Disability

Section 25(2)(e)

If either party has a physical or mental health condition that affects their ability to earn, work, or manage their financial affairs, the court takes this into account. This may increase the needs of the affected party and influence how assets are divided.

What this means for your consent order: If one party has a disability that affects their earning capacity or creates additional financial needs, the Form D81 should mention it — and the consent order should reflect it in the settlement terms.

Factor 6: Contributions to the Marriage

Section 25(2)(f)

Contributions aren't just financial. The court considers both financial contributions (income, property brought into the marriage, inheritance) and non-financial contributions (homemaking, childcare, supporting the other party's career). In landmark cases, the courts have confirmed that a homemaker's contribution is to be treated as equal in value to a breadwinner's financial contribution.

This factor also includes contributions to the welfare of the family — caring for elderly relatives, managing the household, and any other non-financial contribution that enabled the marriage to function.

What this means for your consent order: You don't need to itemise every contribution in the Form D81. But if the proposed settlement appears to undervalue one party's contribution — particularly a homemaker who sacrificed career development — the judge may query it.

Factor 7: Conduct

Section 25(2)(g)

Conduct is rarely relevant in financial proceedings. The court is not interested in who had an affair, who was a difficult spouse, or who initiated the divorce. Under the no-fault divorce system introduced in 2022, blame is no longer part of the process.

The only conduct the court considers is conduct that would be inequitable to disregard — meaning it would be unfair not to take it into account. In practice, this is limited to extreme cases: deliberate dissipation of assets (spending or hiding money to reduce the pot), serious fraud, or conduct so egregious that ignoring it would shock the public conscience.

What this means for your consent order: Unless there's been serious financial misconduct, don't waste time or space in your Form D81 discussing behaviour. Judges are not interested in who was at fault — they're interested in what's fair.

Factor 8: Loss of Benefits

Section 25(2)(h)

This factor specifically addresses benefits that one party will lose as a result of the divorce. The most significant is pension benefits — particularly the loss of a spouse's pension or death-in-service benefits. If one party was entitled to a widow's or widower's pension from the other's scheme, divorce extinguishes that entitlement.

This is one of the reasons pension provision is given such weight in financial settlements — and why the court expects consent orders to address pensions properly, whether through sharing, offsetting, or explicit dismissal of pension claims.

What this means for your consent order: If your order doesn't address pensions — and either party has one — the judge will almost certainly query it. For more on how pension sharing works in a consent order, see our guide: Pension Sharing in Divorce: What the 2026 Reform Means for Your Settlement.

How the Judge Actually Applies These Factors

In practice, the judge doesn't work through Section 25 like a checklist with a score for each factor. Instead, they take a holistic view — weighing all eight factors together against the overall fairness of the proposed order.

For the vast majority of consent orders — particularly those involving moderate assets — the analysis comes down to three practical questions:

1. Can both parties meet their housing needs? If one party is left without adequate housing while the other retains significant equity, the order is unlikely to be approved without explanation.
2. Have pensions been addressed? Pensions are mentioned in two of the eight factors (resources and loss of benefits). The judge expects them to be dealt with — shared, offset, or explicitly dismissed.
3. Is the departure from equality explained? If the split isn't roughly equal, the Form D81 needs to explain why. "Both parties agree" isn't sufficient — the judge needs to understand the reasoning.

For consent orders, the bar is lower than for contested orders. The judge isn't trying to decide what they would have ordered — they're checking that the agreement both parties have reached falls within the range of outcomes a reasonable court could accept. Parties are allowed to make their own decisions, even ones a judge might not have made themselves — provided both understand what they're agreeing to and neither is being pressured.

What Gets Your Consent Order Approved First Time

Based on the Section 25 framework, here's what a judge needs to see for a smooth approval:

What the Judge Wants	How to Provide It
Full financial picture	Complete every section of Form D81 — income, property, pensions, savings, debts. No blank fields. Use "Nil" or "£0" where applicable.
Pensions addressed	Either include a Pension Sharing Annex, explain offsetting arrangements, or explicitly dismiss pension claims in the order.
Housing needs met	Show that both parties can house themselves (or explain the arrangement — e.g., one party staying with family temporarily).
Children considered	If there are children under 18, explain their living arrangements and how their needs are being met.
Reasoning for the split	Section 10 of Form D81 must explain why the proposed order is appropriate. Don't leave it blank or write "agreed."
Correct legal drafting	Proper recitals, correct dismissal clauses, section 28(1A) bar, Inheritance Act dismissal. Standard legal format expected by the Family Court.

A consent order that addresses all six points is likely to be approved without queries. Miss one, and you'll receive a Letter of Requisition asking for clarification — which typically adds 4–8 weeks to the process.

One additional point that catches people out: the judge assesses the net effect of the proposed order — meaning each party's financial position after the order is implemented, not just the raw numbers on the Form D81. If the Form D81 shows one party with £200,000 in property equity but the consent order transfers that property to the other party, the judge needs to see both sides of that equation clearly. Make sure your Form D81 and consent order tell a consistent story about where each person ends up.

For a full list of the most common reasons judges return consent orders, see our guide: How to Get a Consent Order — The 7 Most Common Mistakes.

Section 25A: The Clean Break Principle

There's one more section that matters for consent orders: Section 25A.

This requires the court to consider whether it's possible to end the financial obligations of each party toward the other as soon after the divorce as is just and reasonable. In other words, the court should aim for a clean break wherever possible — a once-and-for-all settlement that avoids ongoing financial ties.

This is why clean break provisions are so common in consent orders, and why judges generally welcome them. A clean break gives both parties finality. It prevents future litigation. It allows both people to move on with their financial lives independently.

If your consent order includes clean break provisions — dismissing all future claims for capital, maintenance, pension, and inheritance — you're aligned with what the court is trying to achieve under Section 25A. For more on how this works in practice, see our guide: How Much Does a Clean Break Order Cost in the UK?

Frequently Asked Questions

Does the court always split assets 50/50?

No. There is no automatic 50/50 rule. The court aims for fairness, not equality. In many cases — particularly long marriages with comparable contributions — equal sharing is the starting point. But the court can (and frequently does) depart from equality based on needs, earning capacity, contributions, and other Section 25 factors. What matters is that the departure is justified and explained.

Can a judge reject my consent order even though we both agree?

Yes. The judge has a duty to check that the order is fair under Section 25 — even when both parties have agreed. If the order appears significantly disadvantageous to one party without explanation, or if key information is missing from the Form D81, the judge can query it or decline to approve. In practice, most properly drafted consent orders with complete Form D81s are approved without difficulty.

What goes in Section 10 of Form D81?

Section 10 asks you to explain why the proposed financial settlement is appropriate. This is your opportunity to address the Section 25 factors in your own words. Explain how both parties' needs are met, why the proposed split is fair, and how pensions and property have been dealt with. Even a few clear sentences make a significant difference — judges have said they find it much easier to approve orders where Section 10 is properly completed.

Does the judge consider fault (who caused the divorce)?

Almost never. Under the no-fault divorce system introduced in 2022, blame is not part of the divorce process. In financial proceedings, conduct is only relevant if it would be "inequitable to disregard" — which in practice means serious financial misconduct like hiding assets or deliberate dissipation of the marital pot. Day-to-day behaviour during the marriage is irrelevant to financial settlements.

How does Section 25 apply if we have no assets?

The same factors apply, but the analysis is simpler. If neither party has significant assets, the key question is whether the proposed clean break is fair — which in most no-asset cases it clearly is, since both parties are in the same position. The judge will still want a completed Form D81 showing the financial picture, but approval is typically straightforward. For more, see our guide: Do You Need a Consent Order If You Have No Assets?

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This article is for general informational purposes only and does not constitute legal advice. ConsentReady is an automated legal document generation platform, not a regulated law firm. The Section 25 factors described in this article are based on the Matrimonial Causes Act 1973 as applied in England and Wales. Court fees are correct as of August 2026. For advice specific to your situation — particularly in complex cases involving business assets, trusts, or significant pension disparity — consider consulting a family solicitor.