Are Consent Orders Final?
Yes, generally, a Consent Order approved by the Federal Circuit and Family Court of Australia (FCFCOA) does finalise the finances – Consent Orders Final
Here’s a breakdown of what that means:
- Legally Binding Agreement:
- Consent Orders are not just an informal agreement; they are legally binding orders made by the Court once approved.
- The Court reviews the proposed orders to ensure they are “just and equitable” (fair) before making them.
- Once made, both parties are legally obligated to comply with the terms of the orders.
- Achieving Finality (The “Clean Break” Principle):
- A primary objective of financial Consent Orders is to achieve a “clean break” between the parties, as far as practicable. This means severing the financial ties and responsibilities between the former spouses.
- Section 81 of the Family Law Act 1975 (Cth) outlines this principle, stating that the Court shall, as far as practicable, make orders that will separate the financial relationships between the parties to the marriage. This is designed to avoid further family law proceedings between them.
- This means that once Consent Orders are in place for property settlement and/or spousal maintenance, neither party can generally come back and make further claims on the other’s assets or income covered by those orders.
- Scope of Financial Matters Covered:
- Consent Orders can comprehensively deal with:
- The division of real estate (e.g., the family home, investment properties).
- The division of other assets (e.g., bank accounts, shares, vehicles, household contents).
- The allocation of liabilities (e.g., mortgages, loans, credit card debts).
- Superannuation splitting.
- Spousal maintenance (either an agreement for one party to pay the other or a “clean break” where both parties agree to waive any future claims for spousal maintenance).
- Can Financial Matters Be Reopened?
- While Are Consent Orders Final designed to be final, it is possible, in very limited and exceptional circumstances, for financial matters to be revisited.
- Section 79A of the Family Law Act 1975 (for married couples) and Section 90SN (for de facto couples, though your question is about married couples) set out the grounds upon which a Court might set aside or vary a final property settlement order. These include:
- Fraud:
- If the order was obtained by fraud (e.g., one party deliberately hid significant assets).
- Duress or Undue Influence:
- If one party was forced or improperly pressured into agreeing to the orders.
- Suppression of Evidence or Giving of False Evidence: Leading to a miscarriage of justice.
- Impracticability: If circumstances have arisen since the order was made that make it impracticable for the order (or part of it) to be carried out.
- Exceptional Circumstances Relating to a Child: If, since the order, unforeseen and very exceptional circumstances have arisen relation to the care, welfare, and development of a child of the parties, and the applicant (who has caring responsibility for the child) will suffer hardship if the order is not varied or set aside.
- Proceeds of Crime Order: If a proceeds of crime order has been made affecting property covered by the family law orders.
- It is very difficult to meet the threshold for setting aside final orders. The Court is generally reluctant to reopen finalised property settlements to ensure certainty and finality for both parties.
- If a person changes their mind later on, or decides that the deal was unfair, they can’t just ask for a Consent Order to be overturned.
In summary:
Yes, Section 81 of the Family law Act is intended to, and generally does, provide Are Consent Orders Final resolution to the financial arrangements between a married couple. They offer legal certainty and allow both parties to move forward with their lives independently. While there are very limited exceptions where matters might be reopened, these are rare and require proof of specific grounds like fraud or a serious miscarriage of justice. In short are Consent Orders Final, Yes they are.
