Consent Orders FAQ
Consent Orders – What are they?
Consent Orders are a way for parties to formalise an agreement they’ve reached dividing their assets and liabilities or formalising the arrangements for the future care of their children without having to go to court. It is done by making an application to the Family Court which sets out the specifics of the agreement that you’ve reached. Once the court makes Orders in accordance with your agreement, it becomes legally binding in the same way as if the court had made Orders pursuant to a contested hearing. Property settlement Orders and the financial relationship between the parties you and Orders a formalising your parenting arrangements give you both peace of mind for the future.
What financial matters can and can’t a Consent Order deal with?
Financial Consent Orders include the transfer of assets between the parties on the sale of assets and the division of the net proceeds of sale. Any assets can be included such as real estate, bank accounts, trusts, companies, cars and superannuation.
Financial Consent Orders cannot however deal with child support matters. The child support agency typically looks after the payment of child support and you can enter into your own private child support agreement if you want to however these are not matters that are covered by Consent Orders.
Why do you need them?
In property settlements, you need a Consent Order to finalise the financial relationship between you so that neither party can come back at a future date and make a claim to the other party’s assets in the future. You can also obtain a stamp duty exemption in relation to the transfer of real estate between parties who were in a relationship.
For parenting matters, locking in an agreement means that neither party can change their mind about the children’s care arrangements if their circumstances change. The Consent Orders are legally binding and can only be changed by agreement between the parties or a further court application.
Spousal maintenance and Consent Orders
Spousal maintenance is the payment by one party to their ex partner of a sum of money with that by way of lump sum or regular instalment on account of one party being in a position to assist the other and the second party being unable to support themselves adequately. Spousal Maintenance Orders can form part of your Orders and are legally binding once made.
Consent Orders – Who Prepares Them?
Whilst some parties prepare their own documents, this can lead to problems because it is very important that the Court Orders are drafted in a way that ensures that they are legally binding and can be enforced. Having a solicitor with family law experience also ensures that there is no ambiguity in your documents and that nothing is left out. Poorly drafted Consent Orders can also result in a fresh application having to be made at some future date and so It is generally a better idea to have someone who has a good understanding of how the documents must be drafted prepare your documents for you.
Do I need to obtain legal advice?
It is not mandatory for parties to Consent Orders to have obtained their own independent legal advice although it is generally a good idea as it gives both parties peace of mind that what they are entering into is an informed decision. Some parties obtain their own independent legal advice and then come together to reach their own agreement and then have it drafted without any further legal advice being obtained.
Are Consent Orders enforceable in the Family Court?
Once the family court makes Consent Orders in accordance with your agreement, they have the same force and effect as if a court had made the Consent Orders pursuant to a contested hearing. This means that if the Consent Orders are breached by one party then the non-defaulting party can take a matter back to court and ask the family court to enforce your agreement or for some other appropriate remedy. Typically however, once court Orders are in place most people comply with them especially if they have been made following an agreement reached between them.
What happens if my partner doesn’t comply with a Consent Order?
If you are having trouble with your former partner complying with the Consent Orders, the first option is always to speak with them and see if things can be varied or arrangements can be made so that the Consent Orders are complied with. Attending mediation can also assist with having what is complied with. If all else fails, either party can make an application to the court to enforce the Consent Orders by filing an application and a supporting affidavit. The code has a number of remedies available to ensure that the Consent Orders are complied with.
Is there a cooling off when signing Consent Orders?
Once Consent Orders have been made, there is no cooling off and you have no opportunity to change your mind. It’s for this reason that you should carefully consider all of the provisions in any proposed agreement and obtain independent legal advice in relation to them if you are at all uncertain prior to signing them. You do have an opportunity between when the documents are filed with the Court and when the Orders are made to withdraw your Consent as the court cannot make Orders if your Consent is withdrawn.
What are the costs of a Consent Order?
Most Lawyers will provide quotes for fixed fees for the preparation court orders. What the fixed fee includes can vary quite significantly and the associated cost can vary also. If you have not yet reached an agreement, then the cost is likely to be significantly higher than if your agreement has been finalised. If you require independent legal advice, the cost will also increase. Most will charge somewhere in the vicinity of $4500 to $7000 depending on what it is you require. You can obtain a quote online here.
What are the main advantages of Consent Orders?
The main advantage of obtaining Consent Orders is the peace of mind that it gives to both parties. A Consent Order will finalise your matter in relation to your property settlement and ensure that neither party is able to come back in the future for another settlement. Parenting Consent Orders will also set in stone in the future arrangements for your children so that neither party can change their mind if their circumstances change in the future. Whilst there are costs associated with obtaining Consent Orders, most people find that this is far outweighed by the benefits.
What are the main disadvantages of Consent Orders?
If you are clear on your agreement and you instruct a Lawyer simply to draft up the Consent Order agreement in accordance with your instructions, then there really should be no disadvantage associated with the process apart from the cost. It is certainly worthwhile to shop around and find a lawyer that meets your specific needs. If you don’t want someone negotiating on your behalf for your Consent Orders and you don’t want someone giving you advice when you have already reached an agreement you are happy with then don’t pay for it.
Is a Consent Order final?
Yes, they are final. Unless you have an application before the court and there are interim Orders in place, Consent Orders are final and operate into the foreseeable future. The legislation requires the court to make Consent Orders that finalise the financial relationship between the parties. The code also considers that it is not in the best interests of children for their matters to be litigated again and again and so Consent Orders are made with a view to creating the least likelihood of the matter ever having to come back before the court again.
Is a Consent Order legally binding?
Consent Orders are exactly the same as any other Court Order. Once the court makes Consent Orders in accordance with the agreement that you have reached, they become legally binding and enforceable in the same way as if a court had made them pursuant to a contested hearing. Being legally binding means that if they are breached, the non-defaulting party can bring them up before the Family Court and ask for the Consent Orders to be enforced or for some other appropriate remedy.
Can a Consent Order be challenged or overturned?
There are very few circumstances in which a Court will be willing to entertain an application to overturn its Consent Orders. For a Property Settlement Order, you would need to establish something like fraud or distress or someone failed to disclose something significant. There are some other very limited circumstances as well relating to the care of children. For parenting Consent Orders, the court must be satisfied that there has been a material change in circumstances before it will allow a party to re-open a case.
Can I apply for Consent Orders before I get divorced?
You certainly can make an application for divorce prior to finalising your property settlement or making arrangements for your children however you cannot apply for divorce until you have been separated for a minimum of 12 months. For practical reasons, most people need to sort out their property settlement or their care arrangements for the children well within this time. And typically the divorce is left until the last thin
If you change your mind, can you change your Consent Orders?
It is very difficult to have your orders changed once they are made unless you are able to obtain the other parties Consent in which case it is a fairly straightforward process. The court will only enable you to re-open a property settlement case in very limited circumstances that are provided for in the legislation and which relate to things such as fraud or lack of disclosure or changes to the care arrangements for children.
How are Consent Orders applied for in the Family Court?
The court requires you to file two documents – an application for Consent Orders and a minute of Order. The application for Consent Orders sets out a lot of background and historical information as well as your current assets and liabilities. It then sets out who will retain what in a column format. The minute of order must set out precisely the Orders that you are asking the court to make on your behalf. The court will not draft Consent Orders for you and it is for this reason that most people have a Family Law Solicitor draft the documents on their behalf.