This page explains whether you need independent legal advice for consent orders in Australia, who should consider seeking advice, and why it matters for your legal protection. It is intended for individuals considering or preparing consent orders for family law matters.

A solicitor does not need to sign off before parties apply for consent orders. Before signing off on proposed Consent Orders, neither party is required to obtain independent legal advice. In family law matters, consent orders are commonly used to resolve parenting and property issues and avoid court proceedings where the parties have reached an amicable agreement.

Once approved, a consent order is legally binding and has the same legal weight as any other court order. It is a legal agreement that is legally enforceable, usually without a court hearing or requiring the parties involved to attend court unless directed otherwise.

In addition, the court documents do not need to be witnessed, whether by a Solicitor or a Justice of the Peace, or indeed by anyone, and all documents can be signed by both parties as part of the application for consent orders when filing consent orders. The consent order process involves preparing an Application for Consent Orders and draft consent orders in the form of a Minute of Consent Orders, with the Minute setting out the terms in precise legal language and each proposed order placed in a separate paragraph. The Application includes demographic and financial summaries, both parties sign a written agreement, and the documents are then filed with the court registry. Parenting orders and property or financial orders can be sought in the same application. A filing fee of $195 applies unless an exemption is available due to financial hardship.

Obtaining Consent Orders should be contrasted with signing a Binding Financial Agreement, a different document, but one that achieves the same result in that it finalises the property settlement between the parties. Each party must obtain independent legal advice prior to signing a Binding Financial Agreement. The solicitors of each party must sign a certificate as part of the Binding Financial Agreement, indicating that they have advised their clients about the agreement and its advantages and disadvantages. The two documents are very different from one another, primarily because a Binding Financial Agreement is not filed with a court and is essentially a contract between the parties to the relationship. Both documents can formalise property settlements, but consent orders are often preferred where parties want court recognition of an amicable agreement. Consent Orders require court approval through the court system, unlike a Binding Financial Agreement. For example, property matters may include superannuation interests and, in some cases, a superannuation splitting order. A Consent Order is filed in the family court or federal circuit and reviewed by a Judicial Officer, who will only approve property orders if they are fair, just and equitable, and approve parenting arrangements only if they are in the child’s best interests under the family law act, so there is a safety net in place that protects the parties to some extent, which protection does not exist for a Binding Financial Agreement.

Even if a solicitor does not review the Consent Orders prior to their filing, parties should seek legal advice to ensure careful consideration of their legal rights, especially in financial matters or after a de facto relationship, before signing off on such orders as fair and reasonable in the circumstances of their case. Legal guidance can help ensure the orders are legally sound, meet legal requirements, and reduce the risk of them being contested, appealed, overturned, or rejected by the Court Registrar. That is especially important in parenting matters involving parental responsibility, a parenting plan compared with orders, and in issues about financial support, child maintenance, financial agreements, financial resources, or business interests. A family lawyer can provide legal advice in an initial consultation, while the courts themselves do not provide legal advice. Unlike a Binding Financial Agreement, parties do not need separate law firms for consent orders.

This information is general in nature and cannot be interpreted as legal advice. Only a qualified legal practitioner can provide legal advice.