Property Settlement in Consent Orders
Australia’s leading fixed Fee Consent Orders Solution for amicable Property Settlements. No hidden fees, no drawn-out process, just fast, affordable results for your Consent Orders, servicing all of Australia.
What Do You Need Help With?
Whatever stage of life you’re passing through, we can document and finalise a legal arrangement to help you find certainty.
- We do not try to change your agreement. We are a neutral party happy to with both parties for a quick resolution.
- Fast. Our Consent Orders will be prepared in 24Hrs at a fixed fee.
- Professional. We are Accredited Specialists in family law (NSW and QLD).
- Easy to deal with. We offer you a fully remote service with Rachel and Brendan.
- Comprehensive. We complete every step of the process – Application for Consent Orders and Minute of Order.
What is a Property Settlement with Consent Orders?
“Property Settlement in Consent Orders”. Here’s a summary of what you need to know:
Property Settlement in Consent Orders:
Formalizing Agreements: Consent Orders are a way to formalize a property settlement agreement reached between separating parties.
Consent Orders are Legally Binding: Once they have been approved by the court, Consent Orders become legally binding and enforceable.
Division of Assets and Liabilities: The Consent Orders will outline how assets (e.g., real estate, bank accounts, investments, superannuation) and liabilities (e.g., mortgages, loans, credit card debt) will be divided between the parties.
Court Approval Required: The court must review the proposed Consent Orders to ensure they are “just and equitable” before approving them.
Alternative to Litigation: Those who are lucky enough to have an ammicable agreement chgoose Consent Orders. This path avoids a potentially lengthy and expensive court battle.
Key Considerations:
Full and frank financial disclosure is essential.
The agreement must be fair to both parties.
Legal advice is highly recommended.
Relevant Legislation: The Family Law Act 1975 (Cth) governs property settlements in Australia.
In essence, a property settlement in Consent Orders is a legally binding agreement that outlines how assets and liabilities will be divided between separating parties, formalised through court approval. It’s a way to achieve a fair and certain outcome without
Key Objective a Property Settlement:
The primary goal of any property settlement in Australian Family Law , through consent orders, is to achieve a “just and equitable” outcome. in the specific circumstances of the parties. This is the paramount consideration for the Court.
- In family law, a property settlement refers to dividing assets and liabilities (debts) after a marriage or de facto relationship ends.
- This can include all assets, including everything from real estate, superannuation, investments, bank accounts, such as shares, Crypto, cars and bank accounts.
- It also includes all Debts (liabilities) either joint or individual. This would include mortgages, personal loans, car loans, credit cards, tax liabilities, HECS debts.
- The goal is to divide the property in a way that is considered fair and equitable, considering both parties’ contributions and future needs.
Real Estate
Here are some examples of what clients have agreed on in the past. The suitability of each option depends on your personal circumstances, and the effect of the outcome remaining “just and equitable”
In family law, selling a family home within consent orders involves several key aspects:
- Agreement and Consent: Both parties must agree to the sale of the jointly owned asset . The consent order will outline the terms of the sale, reflecting the settlement reached by the separating spouses 9. Striving to obtain a property settlement by consent, without going to Court, is generally preferred.
- Formalization: The agreement to sell the family home, along with other terms of the property settlement, is formalized in a written agreement. This agreement is then submitted to the Court to be approved as a Consent Order.
- Court Approval: The Court (or a Registrar of the Court) reviews the consent order to ensure it is a fair and appropriate agreement. Once Consent Orders have been approved and sealed by the Court, the consent order becomes legally binding.
- Terms of the Sale: The consent order will specify details such as:
- The process for selling the property
- The appointment of a real estate agent
- The agreed-upon sale price or a mechanism for determining it
- Continency orders if the party come to a dispute in the process
- How the proceeds from the sale will be divided between the parties
- Responsibility for costs associated with the sale (e.g., agent fees, legal fees)
- Legal Effect: Once the consent order is made, it has the same effect as a court order made after a hearing. This means both parties are legally obligated to comply with the terms outlined in the order, including the sale of the family home.
- Time Considerations: While an Application for Consent Orders can be filed any time after separation, it should be filed with the Family court within 12 months of a divorce or two years after the end of a de facto relationship.
In essence, the consent order provides a structured and legally enforceable framework for selling the family home as part of a broader property settlement. It ensures that both parties are in agreement, the terms are fair, and the process is legally sound.
Your property may have already been sold, and the funds are sitting in your conveyancer’s trust account.
In this case, the entitlements of each party would be outlined, and the sealed court orders would be provided to the conveyancer for distribution.
This may occur when only one party is on title.
- You may be seeking to transfer a property between parties. This, in most cases, will be exempt from a stamp duty charge, and depending on your state, may provide some additional benefits.
- Transfers can occur between the parties and, in some cases, to the children of the relationship.
- Orders will outline each party’s responsibilities in the transaction, the timeframe for its completion, and the steps that will be taken if one party fails to comply with the terms of the agreement.
- Payment may be applicable to balance the contribution of each party or perhaps the offset of a superannuation splitting order.
- Some parties, if they have multiple properties, take one each and perhaps a cash adjustment to allow for equity differences.
- Stamp duty exemptions can be explained further on a state-by-state basis in our post HERE
- Specific Orders Regarding the House: The draft consent order will include specific orders regarding the house, such as:
- That the party retaining the house will continue to own it solely.
- Responsibility for the mortgage: The party retaining the house will be solely responsible for the mortgage.
- Refinancing: The draft consent order should include a settlement date, which is the date by which the party retaining the house should have refinanced the mortgage into their sole name .
- Settlement Date: The draft consent order should include a settlement date if a refinace is required, which is basically the date by which you should have refinanced the mortgage. That motrtgage my still remain in the current owners name but a refinance may be required for payment to the other party.
- Legally Binding: Once the consent order is stamped and sealed by the court, it becomes legally binding.
Superannuation
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All superannuation must be included in the total asset pool
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Superannuation can be retained by each party ( but still included in the final percentage)
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Allowances for superannuation splitting can be made with additional payments from other assets (such as a a house sale or transfer)
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Superannuation splitting can occur but is subject to the approval of the trustee of the fund.
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SMSF Funds can be spilt but sometimes there are liquidity problems.
Superannuation in Consent Orders
Investments
- Investments may be retained, transferred or split between the parties.
- Timeframes must be included in the court order.
- Investments may include Shares, Crypto, and managed funds. It may also include physical assets such as metals or artworks.
- Nominated values must be current, agreed upon, and included in the application and the “minute of order”.
- All orders create an indemnity that prevents the other party from claiming on that asset in the future.
Bank Accounts
- All Bank Accounts need to be disclosed – we list them as estimates because balances change all the time
- Joint accounts will need to be separated to finalise the financial relationship.
- If you have a joint account that you use to pay for children’s expenses jointly, we will discuss that with you personally.
- Generally, redraw accounts will be closed as part of the refinance of the mortgage.
- Credit Cards need to be disclosed, and if jointly owned, either paid and closed or retained by one partner ( if there are two names probably closed)
- All orders create an indemnity that prevents the other party from claiming on that asset in the future.
What are the steps to complete your property settlement in consent orders?
01
Talk to Us
Before starting your matter, we need to ensure we can deliver the agreement you and your former partner have designed. If we can't deliver what you want, we will tell you, and if you have paid us money, we will refund it.
02
Draft your Agreement
We provide you with intake forms to complete; They are interactive and quite simple to use. If you have questions, you can call, text or email us. We will provide you with a dedicated mobile number. We will complete the Application for Consent Orders and the minute of Order in 24Hrs
03
Sign Your agreement
Once you are happy with the documents, we will provide you with an electronic version to sign online. Once signed, we will file your Property Settlement documents on our portal and look after the Family Court if they have any questions.
04
Once Approved by the Family Court
We will advise you once your property Settlement is approved and send it to you by email. Additional copies are provided to your Bank, Broker, or Conveyancer if required. We can Provide electronic certified documents
Relevant Legislation to Property Settlements in Consent Orders
The primary legislation governing property settlements and consent orders in Australia is the Family Law Act 1975 (Cth). Within this Act, several key sections are particularly relevant:
For Property Settlements Generally:
Section 79 – Alteration of property interests:
- This is the section allows the Federal Circuit and Family Court of Australia (FCFCoA) to make orders that alter property interests of parties in a marriage. It also sets out the broad principles the Court must consider, including the “just and equitable” requirement and the various contributions.
- Section 75(2) – Matters to be taken into account in relation to spousal maintenance: While primarily related to spousal maintenance, the extensive list of factors in this section (age, health, earning capacity, care of children, financial resources, etc.) are also explicitly cross-referenced and considered by the Court under Section 79 when assessing the “future needs” of each party for a just and equitable property settlement.
- Section 79A – Setting aside of orders altering property interests: This section allows a party to apply to the Court to set aside or vary a final property settlement order in very specific and limited circumstances, such as:
- If there is a miscarriage of justice due to fraud, duress, suppression of evidence, or false evidence.
- Failure to carry out an obligation imposed by the order.
- Only in exceptional circumstances in relation to the care, welfare, and development of a child of the marriage.
- Part VIIIAB – Financial Matters (for de facto relationships)
- Section 90SM – Alteration of property interests (de facto relationships): This section is equivalent to Section 79, but it applies specifically to de facto relationships. It grants the Court the same powers to alter property interests for de facto partners, using similar “just and equitable” principles and taking into account comparable factors.
- Section 90SF – Matters to be taken into account in relation to de facto partner maintenance: Similar to Section 75(2) for married couples, this section provides the factors the Court considers when assessing the future needs for de facto property settlements and de facto partner maintenance.
- Section 90SN – Varying and setting aside orders altering property interests (de facto relationships): This mirrors Section 79A for married couples, allowing for the setting aside or variation of de facto property orders in similar limited circumstances.
For Consent Orders Specifically:
While the above sections provide the substantive law that the Court applies when making orders (whether by consent or after a contested hearing), the procedural aspects of Consent Orders are generally covered by:
- Part VIII, Division 3 – Proceedings by consent (for married couples) – While not a standalone “consent order” section, the overall framework of Part VIII allows for orders to be made by consent.
- Part VIIIAB, Division 3 – Proceedings by consent (for de facto relationships) – Similarly, this part allows for de facto property orders to be made by consent.
- Section 44 – Institution of proceedings: This section is crucial for understanding the time limits for commencing property settlement or maintenance proceedings, including by consent orders.
- Section 44(3) :For married couples, property or spousal maintenance applications cannot be filed after 12 months from the date a divorce order becomes absolute, without leave of the Court or consent of the other party.
- Section 44(5): For de facto couples, property or de facto partner maintenance applications must be made within 2 years after the end of the de facto relationship, without leave of the Court.
FEDERAL CIRCUIT AND FAMILY COURT OF AUSTRALIA (FAMILY LAW) RULES 2021
- Family Law Rules 2021: While not part of the Act itself, these Rules provide the procedural framework for filing applications for consent orders, including the specific forms (e.g., Application for Consent Orders, Minute of Consent Orders) and requirements for accompanying documents and information. The Rules ensure that the process of submitting consent orders to the Court is streamlined and consistent.
- Family Law (Superannuation) Regulations 2001: These regulations provide the specific rules and procedures for dealing with superannuation interests in family law property settlements, including how superannuation is to be valued and split by way of consent orders.
We only do Consent Orders.
Kate Austin only works with clients to draft consent orders. We do not draft Binding Financial Agreements or prenuptial agreements, or offer other services.
We are a national service.
As a service that operates nationally, in fact, the world, so long as their matter can be determined in the Australian Family Court. Family law is a national law governing all Australians equally. The same rules apply in all states ( with some exceptions in Western Australia). A registrar within any state (except Western Australia) can determine your consent orders.
Fixed Fee Sevice .
For simplicity, we only charge fixed fees, avoiding confusion and eliminating a potential dispute over fees. We advise our fees in advance and provide you with a trust account request for that amount. That money will remain in your trust account until the matter is finalised. Then we will pay your account usually a week or two later. Fixed fees avoid potential conflicts.
We will only accept your matter if we believe it’s “just and equitable”.
We complete quite a few hundred matters each year. We are proud that we have never had a matter ejected by the Family Court. We can never guarantee what the court will decide; however, after 25 years of Family Law, we can select matters that the Family Court will approve.
What is in a Property Settlement Consent Order?
We only do Consent Orders.
We only work with clients to draft consent orders. We do not dabble in anything else, and we do not engage in litigation matters. We do not draft Binding Financial Agreements or prenuptial agreements or offer other services.
We are a national service.
We assist clients all over Australia and, in fact, the world so long as their matter can be determined in the Australian Family Court. Family law is a national law governing all Australians equally. The same rules apply in all states ( with some exceptions in Western Australia). A registrar within any state (except Western Australia) can determine your consent orders.
Fixed Fees.
For simplicity, we only charge fixed fees, avoiding confusion and eliminating a potential dispute over fees. We advise our fees in advance and provide you with a trust account request for that amount. That money will remain in your trust account until the matter is finalised. Then we will pay your account, usually a week or two later. Fixed fees avoid potential conflicts.
We will only accept your matter if we believe it’s “just and equitable”.
Our Firm completes quite a few hundred matters each year. We are proud that we have never had a matter ejected by the Family Court. We can never guarantee what the court will decide; however, after 25 years of Family Law, we can select matters that the Family Court will approve.
What is the Kate Austin Property Property Settlement process?
Step 1. Talk to us. We work to help people. We need to understand if we can help you, and you need to be comfortable working with us. If we think you can help, we will say so. If not, we may be able to provide you with some suggestions.
Step 2. – We will send you our intake forms and fee disclosure – Talk with your former partner and make sure everyone is comfortable.
Step 3. – Complete the intake forms – we provide these for you. They are online and a question answer format.
Step 4 – We draft your agreement in 24hrs and make changes in a further 24hrs
Final Step—We will send you your agreement to sign electronically using codes on your mobile. Once you have signed, we will submit it to the Family Court. The Family court should approve your agreement within 4 weeks or less.
Associations of Which We’re Part
Questions on Consent Orders?
General Questions about the Consent Orders
Consent Orders require full financial disclosure of all assets and liabilities. Without full the full picture, the Family Court cannot make an informed decision about “just and equitable”.
No – The Family Court cannot change your agreement. The only option they have is to approve your request or initially requestion it and unsuccessful dismiss your application.
The court will make all reasonable attempts to ensure that one party is not being taken advantage of. Occasionally, we see matters one party is trying to submit an agreement that clearly is taking advantage of the other party.
Yes, even if there is a nominal amount, once again, it’s full financial disclosure.
Yes, all states and territories have provisions for stamp duty exemptions. While the rules do vary from state to state we will your orders will be compliant with your states regulation.
Contingency orders outline what happens if one party does not comply with an order with in the agreed terms.
