Consent Orders are Final: Why Consent Orders are the Gold Standard

When a relationship ends, the emotional toll is often accompanied by significant financial uncertainty. One of the most common questions we hear is: “How do I make sure my ex-partner can’t come back for more money years down the track?” are Consent Orders are Final

The answer lies in Consent Orders. These are legally binding documents approved by the Family Court that formalise the division of assets, liabilities, and superannuation.

Here is why they are essential for protecting your financial future and how the process works.

Consent Orders are Final 

1. Why Consent Orders Provide Finality

Unlike an informal “handshake agreement” or a simple written note, Consent Orders carry the weight of the law. They achieve finality because:

• The “Clean Break” Principle: The Family Law Act encourages the court to make orders that will finally determine the financial relationships between the parties and avoid further proceedings.

• Legal Immunity: Once the court issues these orders, neither party can simply change their mind or ask for a “re-do” because they feel they made a bad deal.

• Enforceability: If one party refuses to sell a house or transfer funds as agreed, the orders provide a clear legal mechanism to force compliance.

2. How the Process Works

To achieve this finality, you don’t necessarily have to step foot in a courtroom.

1. Agreement: You and your former partner agree on how to split your property.

2. Application: You file an Application for Consent Orders along with a draft of the specific orders you want the court to make.

3. Full Disclosure: Both parties must provide a transparent picture of their financial position.

4. Court Review: A Registrar reviews the documents. They do not just “rubber-stamp” them; they must be satisfied that the agreement is “just and equitable” (fair) to both parties under the law.

3. The “Windfall” Scenario: What Happens Next?

A major concern for many is what happens if one person’s financial situation improves drastically after the separation—for example, through an inheritance, a lottery win, or a successful business venture.

The General Rule: Once the Court has approved your Consent Orders, the financial tie is severed. If you receive a financial windfall after the orders are made, that money is generally yours to keep. Because the “book is closed,” your former partner typically has no legal claim to assets acquired post-settlement.

The Exception: The only way a party can usually “re-open” a settled property matter is if they can prove:

• Non-disclosure: One party hid assets during the original process.

• Fraud or Duress: The agreement was reached through lies or illegal pressure.

• Impracticability: Circumstances have changed so much that the orders can no longer be carried out.

Important Note: This is why “Full and Frank Disclosure” is the most vital requirement. If you hide a bank account now to protect it, you risk your entire settlement being overturned later if that account is discovered.

4. Requirements for a Binding Order

To ensure your Consent Orders are bulletproof, the following must be met:

• Proper Drafting: The orders must be written in specific legal terms that the Court accepts.

• Just and Equitable: The split must fall within a range that the Court deems fair based on contributions and future needs.

• Independent Legal Advice: While not strictly mandatory for Consent Orders (unlike Binding Financial Agreements), it is highly recommended to ensure you understand exactly what rights you are signing away.

Take Control of Your Tomorrow – Consent Orders are Final

Finalising your property matters isn’t just about dividing what you have now; it’s about protecting what you will build in the future. Without formal orders, your financial world remains “open” to claims for years to come.

Australia, the primary authority for property settlements is the Family Law Act 1975 (Cth). The legal “teeth” behind Consent Orders come from specific sections that mandate finality and ensure the agreement is legally enforceable.

The following sections provide the legal basis for why and how these orders finalise your financial relationship.

Which sections of the legislation give finality to joint financial affairs?

1. The “Clean Break” Principle: Section 81

This is the most important section regarding finality. Section 81 (for married couples) and its de facto equivalent Section 90ST explicitly state that:

“The court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties… and avoid further proceedings between them.”

This is the legislative “instruction” to the court to ensure that once the orders are made, the financial tie is severed forever.

2. The Power to Alter Property: Section 79

Section 79 (for married couples) and Section 90SM (for de facto couples) grant the Court the power to actually change who owns what.

• It allows the Court to take property belonging to one person and give it to the other.

• Without an order made under this section, a “private agreement” doesn’t actually change the legal ownership in a way that prevents future claims.

3. The Requirement for Fairness: Section 79(2)

For a Consent Order to be approved, the Court must be satisfied under Section 79(2) that the orders are “just and equitable.” * This is why you cannot simply “give everything to one person” if it leaves the other person with nothing.

• The Court acts as a gatekeeper to ensure the agreement is fair, which is what makes it so difficult for one party to challenge or overturn later.

4. The “Safety Valve”: Section 79A

You asked about windfalls. Section 79A is the part of the Act that explains when an order can be set aside. It is intentionally very strict to protect the finality of the settlement. An order can generally only be re-opened if:

• There has been a “miscarriage of justice” (e.g., fraud, duress, or hiding assets).

• It has become “impracticable” to carry out the orders.

• A party has defaulted on the agreement.

Because a post-settlement windfall (like a lottery win or inheritance) does not fall under these categories, Section 79A actually protects the person who received the windfall by preventing the other party from easily re-opening the case.

Summary Table: The Legislative Framework. Why Consent Orders are Final