Consent Orders - A complete explanation
Consent Orders are a simple, cost effective solution to finalise the financial relationship between partners.
Below is a summary of questions most commonly asked and answers with links to a more detailed explanation.
Frequently asked questions about Consent Orders
- What are Consent Orders
- Benefits of Consent Orders
- Process for Getting Consent Orders
- What can be included
- Are they Legally Binding
- What does " Just and Equitable mean"
- Does this finish the financial relationship
- Are Consent Orders Final
- What is a minute of Order
- Can Consent Orders be changed
- Consent Orders v A BFA
- Do you need independent Legal Advice
- What is "the best interests of the Child"
- Consent Orders V Parenting Plan
- Child Support on Consent Orders
- Spousal maintainance in Consent Orders.
What are consent Orders
Consent Orders are then approved and formalised by a court, they transfer an agreement into an enforceable court order, without the need for a full court hearing or trial.
In Australia, Consent Orders are most commonly used in family law matters following separation or divorce. Couples can use them to settle arrangements for:
- Parenting:
- Financial and Property Matters:
Key Characteristics:
- A Mutual agreement:
- Approved by teh Family Court:
- They are Legally Binding:
- They finalise the financial relationship:
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- A fundamental condition is that the property transfer must result from the irretrievable breakdown of a marriage, de facto, or domestic relationship, with the revenue office needing to be satisfied with the breakdown.
- The property transfer agreement must be formalised through a legally recognised instrument like Consent Orders or Binding Financial Agreements (BFAs).
- The property transferred must be classified as “matrimonial property” or “relationship property” and transferred to eligible parties, such as the parties themselves, their children, or trustees acting on their behalf.
Post 2
- The core principle is that property transfers resulting directly from a relationship breakdown should be exempt from stamp duty to facilitate equitable asset division.
Post 3
- Definition: A tax levied by state and territory governments in Australia when ownership of an interest in property changes hands.
- Applicability: Applies to various property acquisitions:
- Residential homes
- Investment properties
- Vacant land
- Commercial or industrial properties
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Post 4
- A fundamental condition is that the property transfer must result from the irretrievable breakdown of a marriage, de facto, or domestic relationship, with the revenue office needing to be satisfied with the breakdown.
- The property transfer agreement must be formalised through a legally recognised instrument like Consent Orders or Binding Financial Agreements (BFAs).
- The property transferred must be classified as “matrimonial property” or “relationship property” and transferred to eligible parties, such as the parties themselves, their children, or trustees acting on their behalf.
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Post 5
- A fundamental condition is that the property transfer must result from the irretrievable breakdown of a marriage, de facto, or domestic relationship, with the revenue office needing to be satisfied with the breakdown.
- The property transfer agreement must be formalised through a legally recognised instrument like Consent Orders or Binding Financial Agreements (BFAs).
- The property transferred must be classified as “matrimonial property” or “relationship property” and transferred to eligible parties, such as the parties themselves, their children, or trustees acting on their behalf.
Post 6
- The core principle is that property transfers resulting directly from a relationship breakdown should be exempt from stamp duty to facilitate equitable asset division.
Post 7
- Definition: A tax levied by state and territory governments in Australia when ownership of an interest in property changes hands.
- Applicability: Applies to various property acquisitions:
- Residential homes
- Investment properties
- Vacant land
- Commercial or industrial properties
4
4
.
Post 8
- A fundamental condition is that the property transfer must result from the irretrievable breakdown of a marriage, de facto, or domestic relationship, with the revenue office needing to be satisfied with the breakdown.
- The property transfer agreement must be formalised through a legally recognised instrument like Consent Orders or Binding Financial Agreements (BFAs).
- The property transferred must be classified as “matrimonial property” or “relationship property” and transferred to eligible parties, such as the parties themselves, their children, or trustees acting on their behalf.
Post 9
- A fundamental condition is that the property transfer must result from the irretrievable breakdown of a marriage, de facto, or domestic relationship, with the revenue office needing to be satisfied with the breakdown.
- The property transfer agreement must be formalised through a legally recognised instrument like Consent Orders or Binding Financial Agreements (BFAs).
- The property transferred must be classified as “matrimonial property” or “relationship property” and transferred to eligible parties, such as the parties themselves, their children, or trustees acting on their behalf.
General questions about the Exemption of Stamp Duty
- Answer: Yes. Relying solely on an informal agreement will not qualify for a stamp duty exemption.
- Requirement: The property transfer must be formalised through a legally recognised instrument:
- Consent Orders sealed by the Family Court.
- Binding Financial Agreement (BFA), as specified by state legislation.
- Common Pitfall: Many individuals select informal agreements to reduce legal costs or maintain amicable relations, but this can lead to significant and unexpected stamp duty liabilities.
- Key Takeaway: Formal legal processes are essential to secure the exemption. Informal agreements can be a costly mistake.
- Answer: In many Australian states, the stamp duty exemption can extend beyond the former family home to include other “matrimonial property” or “relationship property” (investment properties, commercial properties).
- Example: Victoria explicitly states its exemption applies to “residential properties, commercial properties, and more”.
- Important Caveat: Conditions for these types of properties (especially those held within complex structures like trusts or companies) can be more intricate and require specific legal advice.
- General Principle: The transfer must still be a direct consequence of the relationship breakdown and to an eligible party.
- Key Takeaway: The exemption can extend to other asset classes, but the conditions can be complex. Seek legal advice for non-standard assets.
- Answer: Property transfers involving assets held within trusts or companies can be eligible for stamp duty exemption in some states (e.g., Victoria, New South Wales).
- Complexity: These scenarios are often subject to very specific and strict conditions.
- Key Takeaway: Exemptions may be available for trusts and companies, but the rules are highly complex and require expert legal guidance.
- Answer: Yes, in certain states (e.g., New South Wales, South Australia), individuals may be eligible to claim a refund of stamp duty if it was initially paid, but the conditions for an exemption are subsequently met.
- Time Limits: There are typically specific time limits within which a refund claim must be lodged (e.g., up to five years in New South Wales).
- Condition: The refund is usually granted once the formal conditions for the exemption are met (dissolution/annulment of marriage, official recognition of relationship breakdown).
- Key Takeaway: Refunds may be available if stamp duty was paid before the exemption conditions were met. Check the specific time limits in your state.
- Answer: While the stamp duty exemption itself is generally applied at the time of the property transfer, there are crucial time limits for formalising financial orders under the Family Law Act 1975 (Cth). These time limits indirectly impact the ability to obtain the necessary formal documentation for the exemption.
- Married Couples: Application for Consent Orders (or to commence court proceedings) must generally be filed within 12 months of a divorce order being granted.
- De Facto Couples: The time limit is typically two years from the date of separation.
- Consequences of Missing Deadlines: Parties will generally be required to seek the Court’s special permission (“leave”) to file an application, which is not always granted and can add significant time and cost to the process.
- Key Takeaway: While the tax exemption applies at the point of property transfer, the legal framework (obtaining Consent Orders or a BFA) has its own, often strict, time limits. Missing these legal deadlines can jeopardise the ability to claim the stamp duty exemption. Act promptly and seek legal consultation.
- Answer: The stamp duty exemption is distinct from Capital Gains Tax (CGT) exemptions.
- Stamp Duty: A transaction tax on property transfer.
- CGT: A federal tax on profits made from selling assets.
- CGT Relief: Formalising property settlements through Consent Orders or Binding Financial Agreements often provides “rollover” relief or exemption from CGT on the transfer of certain assets.
- Example: The transfer of a former matrimonial home as part of a formal family law property settlement is typically exempt from CGT when it is later sold by the recipient.
- Recommendation: It is imperative to seek separate, specialised financial and legal advice regarding CGT implications.
- Key Takeaway: Stamp duty and CGT are distinct taxes. Consent Orders can provide CGT relief, but seek specialised financial and legal advice regarding CGT implications.
Questions on Stamp Duty Exemptions?
Having practiced family law for 20 years, we know all the ins and outs. We have attended to hundreds of rejected and requestioned Consent Orders.
States exemption Rules discussed in Detail
Stamp Duty Exemptions by State
Stamp duty exemptions in Australian states vary significantly in terms of legislative requirements, relationship types covered, formalisation processes, and eligible recipients.
- Queensland (QLD): The exemption is governed by the Duties Act 2001 (Qld) and primarily requires a court order (from the Family Law Act 1975) issued before the property transfer. The exemption applies when property is transferred to parties, children, or trustees for their benefit, and the court order must explicitly direct the transfer as a consequence of a relationship breakdown.
- New South Wales (NSW): Under the Duties Act 1997 (NSW), Section 68, the exemption covers marriage, de facto, domestic, and domestic relationships. It necessitates formal legal instruments like Consent Orders, BFAs, or court orders (from the Family Law Act). The exemption is available when these legal agreements or orders are pre-existing, with retrospective refunds available if the conditions are met within five years.
- Victoria (VIC): The Duties Act 2000 (VIC), Section 44(1), broadly applies to residential and commercial properties, including those held within trusts or companies, if transferred due to a relationship breakdown. It requires formal legal documentation, such as Consent Orders or BFAs, and involves detailed criteria for complex assets.
- Australian Capital Territory (ACT): Governed by the Duties Act 1999 (ACT), the exemption applies on transfers under court orders from the Family Law Act or binding financial agreements. The process necessitates formal legal recognition with specific legislative references, and refunds are available if the conditions are subsequently satisfied.
- South Australia (SA): Under the Stamp Duties Act 1923 (SA), Section 71CA, the exemption is granted if the transfer is made pursuant to a Family Law agreement or order, with the Chief Commissioner satisfied that a relationship has irretrievably broken down. Refund mechanisms are available if certain conditions are later fulfilled, with specific time limits.
Overall, while all states recognise the fundamental need for formal legal instruments to qualify for exemptions, the specific legislative criteria, relationship types, eligible transferees, and administrative procedures differ across jurisdictions.
State by State Stamp Duty
Questions on Consent Orders?
Having practiced family law for 20 years, we know all the ins and outs. We have attended to hundreds of rejected and requestioned Consent Orders.
What are the steps to address Stamp Duty questiosn
01
Call us
Let's have a general discussion about your matter. No Judgement, just a general discussion to see how we can fix the situation
02
Complete our Intake forms
We will review the email from the court and provide a solution, along with a fixed fee for our services.
03
Consent Orders Completed in 24Hrs
All documents will be updated as required by the requestion. This will include Application for Consent Orders, Minute of Order, Notice of Risk, Affidavits or joint statement of Facts
04
Final version submitted to the Family Court
We will have the documents re-signed electronically and submitted under your portal so that no more court fees are applicable. We will also request an early listing to finalise your matter.
Associations of Which We’re Part
As experienced family lawyers, we’re also a member of Australia’s leading law associations.
