What is a consent order?
A consent order is a legally binding agreement about what happens to your property or children after separation.
It is how you document an agreement with you, and your former spouse. It has the same effect as a court order without going to court. A consent order is usually:
- drafted by a solicitor or lawyer;
- deals with property or children;
- signed by you and your ex-spouse;
- whether proposed division of property is fair in the circumstance;
- reviewed and approved by a judge in a family court; and
- legally enforceable.
Benefits of Consent Orders
- You can apply for a Consent Order without actually having to go to Court
- You can do it yourself; you do not have to ask a lawyer.
- The Court will only approve Consent orders if they are satisfied that the agreements are just and equitable or parenting arrangements are in the best interests of the child
- You can document your parenting, property and spousal maintenance agreements all in one document
Do we need to get a consent order?
You are not required to get a consent order. However, you should consider the following benefits:
- save thousands on stamp duty when transferring ownership of land. If you are transferring land ownership via a family court consent order, you are not required to pay stamp duty. This means it’s more cost effective to hire a solicitor to do a consent order then it is to pay stamp duty, saving potentially thousands of dollars;
- avoid future relationship breakdowns due to uncertainty about an informal agreement;
- in case of disagreement, have a legally binding document to fall back on; and
- protect assets you develop post-separation.
If you separate without a consent order, you should be aware that as time goes by that agreement breakdowns, new partners or friends and family influences are inevitable. That’s why it’s essential to have a consent order, to ensure that what you agreed on is what you get.
Consent Order Family Court
The Family Court is required to make sure the agreement is just and equitable and in the best interests of the children before they can make a consent order. Before making a consent order, they usually consider
- Did both parties seek legal advice before signing the agreement?
- Did a solicitor draft the order?
- Can the agreement be enforced (is it lawful)?
- Did both parties provide full disclosure?
Usually, if a solicitor wrote the consent order, and you both took legal advice before signing the consent order, then the consent order will go through.
Do I have to go to court to get a Consent Order?
In most cases, you will not have to go to Court. The Application for Consent Orders is an administrative purpose. If lawyers draft the consent orders, the orders seem fair and reasonable than it’s improbable you will need to make an appearance.
What is the main point of having consent orders?
They are enforceable, unlike a private agreement. If you need assistance enforcing a consent order, you have the court to back you up. A consent order gives you legal rights and entitlements under the Family Law Act and related acts.
They also act to protect you from further claims to your assets.
What happens if I breach a consent order?
Breaching a consent order is breaching a court order which is a crime.
Is a consent order the end of my family law matter?
No, you will still have to comply with the order, ie transfer assets, sell houses and split super.
A Consent Order will finalise your matter concerning the property settlement with your former spouse/partner and ensure that your ex does not come back in the future for another settlement.