When a couple ends a relationship, they are faced with many changes and often, quite a lot of decisions to make.
Some decisions are small and relatively simple, while others can be a little more complicated to resolve and may even require intervention by the court.
Commonly, some of the more difficult decisions to make are those that involve the property and assets of the couple, and if they have children, how they will parent moving forward.
However, when a couple separates, it is vital that decisions regarding their property and parenting are made, and there are many ways that this can be done.
One of the ways a former couple can finalise property settlements and parenting matters is by reaching an agreement and applying for a consent order.
A consent order is a legal tool that can make private agreements legally binding and, in this piece, we’re going to answer the most common questions that we, as Australian family lawyers, are asked about consent orders. Keep reading to learn more.
What is a consent order?
When a couple separates, they must resolve matters such as how to divide their property and how they will parent their children moving forward. Resolving these matters can make it a lot easier for all parties involved in a separation to be able to move forward with their lives more comfortably.
These decisions can be made between the couple privately or they can be made by the court after a court hearing. If a couple can come to an agreement without court intervention, the agreement can be an informal agreement, or it can be made legally binding.
An informal agreement can work for some people; however, it can lead to complications when a party doesn’t follow the agreement as there is little consequence for not following the agreement.
A consent order is how these agreements can be formalised and made legally binding. It is a type of court order that the parties apply to the courts for once they have come to an agreement and drafted a written order of this agreement.
When the court approves the application for a consent order, this agreement is now a formal and legally enforceable order that must be followed by both parties.
It is called a consent order as both parties have made the agreement and consent to the courts to make the order.
Why do people apply for consent orders?
A consent order is most often entered into to protect both parties to the agreement.
By making the agreement a legally binding consent order, it ensures that the terms of the agreement are enforceable, which offers legal protection if either party were to break the terms of the agreement.
When a property settlement or parenting agreement is left informal, it leaves the door open for misunderstandings and unagreed upon changes to occur. Informal private agreements are not legally binding, so if one party breaches the agreement, nothing can be done from a legal perspective.
While many people may enter an informal agreement with good intentions, there are many factors that could affect a person’s ability to uphold their end of the agreement, and without serious consequences for not following the agreement, fulfilling their end of the agreement may lose importance to the individual over time.
What can consent orders be made for?
Under Australian family law, consent orders are most commonly made for parenting and property settlement matters.
Consent orders for parenting and child custody matters
Making parenting arrangements is an important part of any separation or divorce. These arrangements are usually referred to as a parenting plan and it sets out the various parenting arrangements that you and your former partner have made for your children.
Parenting plans can remain an informal agreement – either written or oral – or the parents can apply to the Federal Circuit and Family Court of Australia to make consent orders that are based on the arrangements of the parenting plan. These consent orders become legally enforceable parenting orders that if breached could lead to a party being penalised.
While consent orders for parenting matters are usually made by the parents of the children, they can also be made by a person who is concerned for the care, welfare and development of a child, such as a grandparent.
The types of matters regarding children and parenting that can be formalised in a consent order include things such as the child/children’s living arrangements, including where and with whom they live with, as well as matters such as education, religion and day to day care.
Consent orders made for parenting and children’s matters will only be approved if they are seen as being in the best interest of the child they are regarding.
Consent orders for property settlement and financial matters
One of the most pressing matters that must be resolved when a couple separates is how they will divide their property and asset pool.
A property settlement involves the division of all assets of the relationship, including items such as the family home, cars, other real estate and properties, investments, superannuation, and money. This can also include assets and property that was acquired before, during and even after the separation.
The way property and assets will be divided will differ from couple to couple, and like parenting matters, couples can make a private agreement, or the courts can decide how the assets will be divided. Like parenting matters, if a couple makes a private agreement, they can either leave it as an informal agreement or it can be made legally enforceable through consent orders.
The consent orders can cover things like how the property and assets will be split, the transfer of sale of properties, and/or even how one spouse may financially support the other.
What are the advantages of having consent orders?
If you’re considering applying for a consent order for a property matter or a parenting matter, there are a number of advantages of having consent orders. These include:
- Consent orders are legally enforceable, which can provide both parties with peace of mind that the orders are more likely to be adhered to and if not, the court can intervene;
- Each party to the agreement has been able to have a say and come to an agreement together, making it more likely that the agreement will be adhered; and
- The agreements are made outside of a court hearing, so not only are they on the terms of the parties, but the creation of the agreement will be less costly and drawn out.
These are only some of the advantages of consent orders.
How do you get a consent order?
In order to get a consent order, whether it’s for a parenting matter or a property settlement matter, the process involves a number of steps and filing an application to the court.
If you and your former partner have been able to come up with an agreement, then the following steps should be taken:
- The terms of the agreements should be drafted and include detailed and specific information – this is known as the “Minute of consent orders”;
- An application for consent orders form needs to be completed; and
- Affidavits will need to be completed by both parties.
Once the documents are completed, the application can be filed with the Federal Circuit and Family Court of Australia. There are fees associated with filing this application – you can find up to date filing consent order fee information here.
Can an application for a consent order be rejected?
It is possible for a consent order application to be rejected by the court. Applications are most commonly rejected by the courts when they either do not provide enough information or if the agreement is deemed as unfair.
Even though both parties have consented to the agreement, an important role of the court is to ensure that any agreement is fair. In property settlement matters, the division of assets must be considered just and equitable, while in parenting and child related matters, the agreement must have been made in the best interest of children it is regarding.
Does a consent order expire?
If there is a date of expiration in the consent order agreement, that will be when the consent order expires. If there is no date, the consent order can remain in place until the parties apply to have the agreement end. If the consent order is about parenting and children matters, the order may expire when the child turn 18 and becomes a legal adult.
What happens if a consent order is breached?
Like any order made by a court, breaching a consent order can have very serious ramifications. The consequences of the breach will vary depending on what was breached and why.
The breach could result in a contravention order that may lead to changes to the agreement, new additional orders, and even compensation from one party to the other.
If the other party to your consent order has breached the order, seeking legal advice from an experienced family lawyer can help you resolve the matter most efficiently.
If you are in Sydney, seeking a family lawyer in Sydney can help navigating your matter efficiently and conveniently.
How can a lawyer help with consent orders?
Consent orders are a great legal tool designed to protect each party’s interests after a separation or divorce, but in order to ensure that they do protect both parties and are legally enforceable it’s best to work with a lawyer.
The process of applying for a consent order involves gathering a lot of information and filling out a lot of documents. It also involves creating an agreement that both parties not only agree to but one that is considered fair.
An experienced family lawyer can help you to prepare consent orders and with filing consent orders accurately. They can also help advise on the proposed agreements and ensure that your rights are protected, and that you’re meeting your legal responsibilities.
Depending on your circumstances, a consent order may not be necessary, and an informal agreement may be sufficient. However, as every situation is different, it’s best to seek legal advice for your circumstances.
Do you need a consent order in Australia?
Whether you’re considering applying for a consent order or you’ve already come up with an agreement with your former partner, at Unified Lawyers, we can help you.
Our family and divorce law team are experienced in drafting agreements and accurately completing and filing consent order applications. We can also provide legal advice that pertains to your specific circumstances.
With offices based in Brisbane, Melbourne and Sydney, we can help people who are going through separations and divorces all over Australia. Call us today on 1300 667 461 or book your free consultation using the button below.
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