How to apply for Consent orders?
Navigating a separation or divorce is rarely easy, but reaching an agreement with your former partner on property division or parenting arrangements is a huge step forward. Once you have reached that agreement, the next vital step is turning your informal agreement into a legally binding court order. How to apply for Consent Orders is the next question. That is where Consent Orders come in.
Applying for Consent Orders is the formal pathway to ensure your property and parenting agreements are final, legally binding, and enforceable under Australian law—all without ever having to set foot inside a courtroom.
Understanding the Process Under The Family Law Act
In Australia, the process for obtaining Consent Orders is governed by the Family Law Act 1975 (Cth) and the Federal Circuit and Family Court of Australia (Family Law) Rules 2021. Understanding the legislative framework ensures your application is prepared correctly so the court approves it without delay.
Step 1: Agreement
Step 2: Formal Drafting
Step 3: Filing & Approval
1. Reaching an Agreement and Identifying the Category
Consent Orders generally fall into two categories: Property/Financial Orders and Parenting Orders. You can apply for one or both in a single combined application.
- Property and Financial Settlements: These cover the division of financial assets, such as real estate, bank accounts, investments, liabilities, spousal maintenance, and superannuation splits. Cars and caravans can also be included
- Parenting Arrangements: These agreements outline the parental responsibilities, living arrangements, time spent with each parent, holiday schedules, and communication protocols for the children
2. The Time Limits Under the Family Law Act 1975
Timing is critical when applying for financial Consent Orders:
- Married Couples: Under Section 44(3) of the Family Law Act 1975, you have 12 months from the date your divorce decree becomes final to file an Application for Consent Orders.
- De Facto Couples: Under Section 44(5), you have 2 years from the exact date of separation.
If you miss these deadlines, you must seek special leave from the court to apply out of time.
3. Judicial Review: The Legal Standards
When you submit your application, a Registrar of the Federal Circuit and Family Court of Australia (FCFCOA) reviews your documents in chambers. The Registrar does not simply stamp what you submit; they must test the agreement against statutory principles. The requirement is called “the just and equitable test”
- For Property Orders (Section 79 for married couples / Section 90SM for de facto couples): The Registrar must be satisfied that the proposed property distribution is “just and equitable”. The Registrar assesses total assets and liabilities, initial and ongoing financial contributions, non-financial and homemaker contributions, and future needs (such as care of young children or earning disparities).
- For Parenting Orders (Part VII, Section 60CA): The court’s paramount consideration is always the best interests of the child. The Registrar considers the child’s safety, the benefit of having a meaningful relationship with both parents, and practical feasibility.
4. Drafting and Lodging the Application
To apply for Consent Orders, two documents must be prepared:
- Application for Consent Orders: A detailed document disclosing full financial disclosure of circumstances, income, assets, liabilities, and the relationship history. No supporting documents are required for this step
- Minute of Order: The legal wording of the agreement you are asking the court to make.
If superannuation splits are involved, you must also provide statutory notice to the superannuation fund trustee (procedural fairness). Once executed, the application is e-filed electronically via the Commonwealth Courts Portal. If approved, the orders are sealed by the court and carry the same legal weight as orders made after a contested trial.
FAQ
1. Do we need to go to court to get Consent Orders?
No. In almost all standard cases, applying for Consent Orders is purely an administrative court process. Once your paperwork is filed electronically via the Commonwealth Courts Portal, a Judicial Registrar considers the documents in chambers. Neither you nor your former partner will need to attend a court hearing.
2. How long does it take for Consent Orders to be approved?
Once filed, the court generally takes between 4 and 8 weeks to process, review, and formally seal the orders. The timeframe can vary depending on court backlog and whether all required supporting documentation (such as superannuation valuation certificates) was submitted correctly at the outset.
3. Can I change or set aside a Consent Order after it is made?
Consent Orders are intended to be final and binding. Under Section 79A (property) and Section 65D (parenting) of the Family Law Act 1975, the court will only vary or set aside a Consent Order in exceptional circumstances—such as fraud, non-disclosure of major assets, impracticality, or a significant change in circumstances affecting a child’s welfare.
4. Are Consent Orders legally binding and enforceable?
Yes. Once approved and sealed by the Federal Circuit and Family Court of Australia, Consent Orders have the same legal effect as an order handed down by a judge after a full trial. If one party breaches the orders, the other party can file an enforcement application with the court.
5. Do we both need separate lawyers to apply for Consent Orders?
No, it is not legally mandatory for both parties to have independent legal representation to apply for Consent Orders (unlike Binding Financial Agreements). However, one lawyer cannot represent both of you due to conflict-of-interest rules. It is strongly advised that at least one party has the orders professionally drafted, and the other party receives independent legal advice before signing.
What are the main concerns clients have: “How do I apply for a consent Order”
Concern 1: “What if the court rejects our agreement?”
Many clients worry that after negotiating in good faith, a Registrar will dismiss their application because the terms don’t meet court formatting or legal standards.
- How Kate Austin Family Lawyers assists: We eliminate this fear by conducting a thorough “just and equitable” assessment before drafting. We structure the statement of financial circumstances in the application form to clearly demonstrate to the Registrar why the division is fair under the Family Law Act, ensuring a smooth, single-pass approval.
Concern 2: “Is the application process going to be expensive and full of hidden fees?”
Separating couples are often terrified of open-ended hourly billing where legal fees consume a large portion of the assets they are trying to divide.
- How Kate Austin Family Lawyers assists: Kate Austin Family Lawyers specialises in fixed-fee Consent Orders. We provide clear, upfront pricing with no surprise charges, giving clients total financial certainty from start to finish.
Concern 3: “How do we handle complex superannuation splits?”
Super splitting requires precise legal phrasing, sometimes statutory valuations with a defined benefit fund, and formal notification to the superannuation trustees under strict procedural fairness rules. Defined benefit matters will require formal valuations. We will organise this step of the process
- How does Kate Austin Family Lawyers assist? We handle all superannuation orders regardless of the fund. We organise valuations, draft splitting clauses required by super funds, and manage the mandatory 28-day trustee notice period.
Concern 4: “Will this process cause more conflict between myself and my ex-partner?”
Clients often worry that Consent Orders will re-ignite arguments or feel overly adversarial, disrupting an amicable separation. Delays in the process also add to their anxiety.
- How Kate Austin Family Lawyers assists: We maintain a non-adversarial approach. Because we focus specifically on formalising agreed outcomes, our communication is calm, constructive, and focused on preserving working relationships—especially important when co-parenting children. We do not get involved in the negotiation process, and we remain a neutral party.
Concern 5: “Are the orders actually final, or could my ex come back for more later?”
A major anxiety for clients is the fear that their former partner might reopen financial claims years down the track.
- How does Kate Austin Family Lawyers assist? We have drafted several thousand sets of Consent Orders in accordance with Section 81 of the Family Law Act 1975. This ensures all present and future financial ties are completely severed, protecting your future earnings, inheritances, and acquired assets from any prospective claims. Once the orders have been approved, your finances have been separated.
Real World Application
When clients approach Kate Austin Family Lawyers asking, “How do I apply for a consent Order?”, they are usually looking for a clear, stress-free pathway to formalise an agreement they have reached with their ex-partner.
Here is how the real-world application of this process works when guided by our team:
Step 1: Initial Consultation and Asset Verification
We start by reviewing your agreed terms regarding property, debt, superannuation, or parenting arrangements. We cross-check these terms against the requirements of the Family Law Act 1975 to ensure the proposed structure will pass the court’s “just and equitable” or “best interests” test.
Step 2: Expert Drafting of Documents
We draft the Minute of Order and complete the Application for Consent Orders. Each order is drafted to ensure that stamp duty exemptions will apply where real estate is transferred, bank accounts are properly reassigned, and superannuation orders are legally compliant. Generally, you would expect 40-60 orders in each matter.
Step 3: Review, Execution, and Trustee Notice
Both parties will need to review the documents. If superannuation is involved, we send the draft orders to the superannuation fund for formal trustee approval. Once approved, we guide you through the signing of the documents. We use an electronic signing platform called DocuSign.
Step 4: Electronic Court Filing and Final Seal
Kate Austin Family Lawyers handles the electronic filing of your application directly on the Commonwealth Courts Portal. We track the application through judicial review. Once the Judicial Registrar approves and seals the orders, we provide you with your official, legally binding court orders—giving you total legal security and complete peace of mind to step into your next chapter.
