Do Consent Orders need to be signed by a Lawyer?
Navigating the world of family law can feel like a maze, so let’s clear up the confusion around Consent Orders versus Binding Financial Agreements (BFAs). While they both achieve a similar goal, the “rules of the game” are quite different.
1. Do Consent Orders Require Independent Legal Advice?
The short answer is no. Unlike a Binding Financial Agreement (BFA), it is not required to have a lawyer sign off on a Consent Order. You and your ex-partner can download the “DIY kit” from the Court’s website, complete it, and file it yourselves.
2. Why are they different from BFAs?
This is the most common point of confusion. Here is the reason for the different rules:
- Binding Financial Agreements (The Private Contract): A BFA is a private contract. The Court never looks at it. Because there is no judge to determine whether the deal is fair, the law requires that both parties obtain independent legal advice. This ensures neither person is being bullied or signing something they don’t understand. The lawyers act as the “guardians” of the process.
- Consent Orders (The Court-Vetted Order): When you file for a Consent Order, a Registrar or Judge actually reads your agreement. They have a legal duty to ensure the split is “just and equitable” (for property) and in the “best interests of the children” (for parenting). Because the Court acts as the “referee,” the law feels it is safe for you to represent yourselves.
3. Why don’t they need to be signed by a solicitor?
Since a lawyer isn’t mandatory, you don’t need their signature on the documents. However, your signatures on the Application for Consent Orders (Form 11) must still be witnessed. If you aren’t using a lawyer, you can have your signature witnessed by:
- A Justice of the Peace (JP)
- A Commissioner for Declarations (Cdec)
- A Lawyer (if you choose to use one for this part)
4. What happens if I choose NOT to get legal advice?
On the application form, there is a specific box you must tick to confirm whether or not you received legal advice.
- If you tick “No”: The Court may look at your application with a slightly more “fine-toothed comb.”
- The “Requisition”: If the Registrar thinks the deal looks significantly unfair to one side (e.g., one person gets 90% of the assets and the other gets 10% for no clear reason), they will send a letter called a requisition. This asks you to explain why the deal is fair or to provide more information. If they still aren’t satisfied, they can reject the application entirely.
5. Reasons to Get (or Not Get) Independent Advice with Consent Orders
Clarity: Lawyers use specific “court-speak” that ensures the orders are actually enforceable. | Cost: Legal fees can be expensive (though often cheaper than fixing a mistake later). | |
Hidden Assets: A lawyer might spot that you’ve forgotten to account for things like tax (CGT) or superannuation nuances. | Simple Estates: If you have very few assets (e.g., just some savings and a car) and the split is 50/50. | |
Protection: It’s much harder for an ex to challenge a Consent Order later if you can prove you both had advice. | High Trust: If you and your ex are on excellent terms and the agreement is straightforward. |
Summary of the Rules
- Agreement: You must agree to all terms.
- Paperwork: Complete an application for Consent Orders and the Minutes of Order.
- Digital Filing: As of 2026, you must also provide a Word document version of your orders so the Court can easily edit and stamp them.
- Full Disclosure: You both have a “duty of disclosure”—you must tell the truth about every dollar you own. If you lie, the orders can be overturned years later.
