It is an incredibly common point of confusion, but a divorce and a property/parenting settlement (Consent Orders) are completely separate legal processes under Australian family law.

Think of a divorce as the official paperwork that legally ends the marriage contract, while Consent Orders are the legal “clean break” regarding who gets what asset and how the children are cared for.

Here is the breakdown of the definitions, timelines, and which one you need to do first.

Definitions

What is a Divorce?

A Divorce Order is strictly the legal recognition that your marriage has ended. It does not sort out who gets the house, how money is split, or where the kids live.

What are Consent Orders?

Consent Orders are a written agreement between you and your ex-partner regarding property/finances and/or parenting arrangements that you submit to the court. Once a Registrar reviews and approves the paperwork, it becomes a legally binding court order.

• Property Consent Orders can cover bank accounts, houses, superannuation splitting, and spousal maintenance. Once finalised, it gives you tax exemptions (like stamp duty relief when transferring property) and prevents either party from coming back for a “second bite of the cherry” later.
• Parenting Consent Orders lay out legally binding agreements for who the children live with, communication, and holiday schedules.

Do you need to do one before the other?

No. You do not need to be divorced to get Consent Orders. In fact, most family lawyers recommend sorting out your Consent Orders first, or at least at the same time. Here is why:

• You can file Consent Orders immediately: You can apply for Consent Orders any time after you separate.
• The Divorce Clock: You cannot even apply for a divorce until you have been separated for at least 12 months and 1 day.
• The Strict Deadline: The moment your divorce becomes final, a strict 12-month countdown begins. You must finalise your property settlement (via Consent Orders) or file a contested court application within one year of that divorce date. If you miss this deadline, you have to ask the court for special permission to apply, which is expensive and not guaranteed. (Note: For de facto couples, you have 2 years from the date of separation to file.

Understanding Consent Orders

Consent orders are a practical and legally binding way for separated couples to formalise agreements about property settlement, financial support, and parenting matters without going to court. Made by the Federal Circuit and Family Court of Australia, consent orders have the same effect as orders made after a contested hearing, but they are usually granted based on the parties’ agreement rather than a judge’s decision. This means you and your former partner can resolve issues like dividing property, superannuation, and care arrangements for children in a way that suits your family’s needs. Consent orders are enforceable by the court, providing security and certainty for both parties.

For example, imagine Sarah and Ben separated after eight years of marriage. They agreed Sarah would keep the family home, while Ben would receive a larger share of their joint savings and superannuation. They also worked out a parenting plan where their two children live with Sarah, but spend every second weekend and half the school holidays with Ben. Together, they included these terms in their application for consent orders, which the court later approved, making their agreement legally binding.

It’s essential to seek legal advice before applying for consent orders to ensure the agreement is fair, reasonable, and accurately reflects what you and the other party have agreed upon. By making your agreement legally binding through consent orders, you can avoid the stress and expense of further proceedings and feel confident that your legal rights are protected.

Do you need to do one before the other?

No. You do not need to be divorced to get Consent Orders. In fact, most family lawyers recommend sorting out your Consent Orders first, or at least at the same time. Here is why:

• You can file Consent Orders immediately: You can apply for Consent Orders any time after you separate.
• The Divorce Clock: You cannot even apply for a divorce until you have been separated for at least 12 months and 1 day.
• The Strict Deadline: The moment your divorce becomes final, a strict 12-month countdown begins. You must finalise your property settlement (via Consent Orders) or file a contested court application within one year of that divorce date. If you miss this deadline, you have to ask the court for special permission to apply, which is expensive and not guaranteed. (Note: For de facto couples, you have 2 years from the date of separation to file.

Application Process

Applying for consent orders involves several important steps to ensure your agreement becomes legally binding. First, both parties must reach an agreement on the terms, whether about property, finances, or parenting arrangements. Next, you’ll need to prepare an Application for Consent Orders, which includes the proposed orders and supporting documents that outline your financial circumstances—such as pay slips, bank statements, and tax returns. This application is then filed with the Family Court, where a registrar will review the documents to confirm that the orders are just, equitable, and comply with the Family Law Act. Full and frank disclosure of all financial resources and circumstances is required from both parties. If the court is satisfied, the consent orders will be made and become enforceable. Because the process can be complex and mistakes can have serious consequences, it’s highly recommended to seek legal advice to ensure your application is accurate and complete. Filing consent orders correctly helps avoid delays and ensures your agreement is recognised and protected by law.

Here are the main things to know

• • Divorce vs Property/Parenting Matters: A divorce order legally ends your marriage, but it does not settle financial support issues like property or spousal maintenance, and child support is dealt with separately from the Family Court consent-order process. Parenting orders are also handled separately from the divorce itself, and family violence may affect parenting arrangements.

1. Time Limits for Financial Consent Orders:
2. • If you are married, you have 12 months from when your divorce order is final to apply for consent orders about financial matters or start court proceedings for a property settlement, and this time frame is important.
   • If you were in a de facto relationship, you usually have 24 months from the date you separated to apply for financial consent orders, and the same time frame applies to applications about property arrangements and financial orders after a relationship breakdown.
   • You can apply for consent orders before or after you are divorced, including right after you separate.
3. Parenting Consent Orders: There are usually no set time limits for applying for parenting consent orders after you separate.
4. **Practicality:**Many people sort out their financial and parenting arrangements (using Consent Orders or a Binding Financial Agreement) before they apply for divorce, since these issues often feel more urgent. Others wait until after the divorce is final, especially if everyone agrees on the terms.
5. No-Fault Divorce : In Australia, divorce is “no-fault,” so the court does not look at why the marriage ended. You only need to be separated for 12 months with no real chance of getting back together. After a relationship breakdown, property includes assets and liabilities such as the family home and any superannuation interest.
6. • Consent orders are legally binding and enforceable by the Court.
   • Consent orders can cover a broad range of Family Law matters, including a division of property and superannuation, with a superannuation fund involved where relevant.
   • The Court must be satisfied that the proposed Consent Orders are just and equitable in all of the circumstances.
   • Each party has a duty to provide full and frank disclosure of their financial circumstances to the other party when preparing an Application for Consent Orders.
   • Consent Orders can be obtained without either party going to Court, as they are usually determined by a Registrar of the Federal Circuit and Family Court of Australia in the absence of the parties.
   • It is advisable to obtain legal advice before deciding what to agree to or before applying to the courts for consent orders.
   • The Court can only make consent orders if they comply with the requirements of the Family Law Act, and the resulting court order has the same effect as orders made after contested proceedings.
   • An Application for Consent Orders must include at least two documents: the Application for Consent Orders form and a signed copy of the proposed orders.
   • The parties are notified when the Court has made the orders after filing an Application for Consent Orders.
   • The Court can only make consent orders if they comply with the requirements of the Family Law Act.
   • If you do not apply within these time frames, you will need permission from the court to apply for property orders.
   • The Court has discretion to grant a party leave to apply after the end of the standard application period if the Court is satisfied that hardship would be caused to a party or a child if leave were not granted.
   • If you do not apply within these time frames, you will need permission from the court to apply for property orders.
   • Once the respective time frames expire, the parties are ‘out of time’ to apply to the Court for Orders about their property interests.
   • De facto couples have 24 months from the date of separation to file for financial consent orders.
   • You must be separated for at least 12 months before applying for divorce in Australia.
   • An Application for Consent Orders can be filed any time after separation, but should be filed within 12 months of a divorce or two years since the end of a de facto relationship.