What are property consent orders in Australian family law?
If you’ve separated from your spouse or partner, you may have negotiated a property settlement agreement without going to court.
But to make the agreement enforceable under Australian family law, it’s a good idea to have it transferred into court orders.
Making the agreement a legally binding consent order ensures that its terms are enforceable, offering legal protection if either party breaches them.
When a property settlement is left informal, it leaves the door open to misunderstandings and unagreed-upon changes.
Informal private agreements are not legally binding, so if one party breaches the agreement, nothing can be done legally.
Where you both agree to a court making orders based on a property settlement agreement, these orders are known as consent orders.
It’s important to note that applying for a divorce and finalising property matters through consent orders are two separate legal processes.
What are the advantages of having property consent orders?
Getting property consent orders often smooths the way for whatever issues may arise down the track.
Advantages include :
- Neither you nor your former partner needs to attend court to get the orders.
- If your former partner breaches the orders, you can ask a court to intervene.
- Family law gives courts specific powers to deal with breaches, for example, making further orders including for payment of your legal costs, imposing fines and/or imprisonment (for contempt of court).
- Peace of mind that your orders are legally enforceable
- 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
- Being entitled to exemptions, for example, an exemption from stamp duty
Who can apply for property consent orders?
You can apply for property consent orders if you’re :
- A former de facto couple
- A separated married couple
- A divorced couple
For former de facto couples, you must make the application within 24 months (two years) of separating. You’ll need to know your date of separation.
If you’re concerned that you may be out of time to apply for consent orders, contact an expert family lawyer immediately.
In some limited circumstances, a court will grant an extension of time.
If either you or your former partner lived overseas or in Western Australia, either during or after the relationship, there may be special requirements that apply to your property settlement.
How do I get consent orders for a property settlement agreement?
While you’re negotiating your property settlement agreement, often through family law mediation, we’ll discuss whether you should apply for a consent order.
We’ll give you legal advice, tailored to your circumstances, and with your best interests as the number one priority.
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.
If you decide to proceed with property consent orders, at Unified Lawyers, our expert family lawyers can draft the application and file it for you.
If your former partner is making the application (either on their own or through their lawyers), we’ll make sure everything’s in order and we’ll also let you know when the order has been made.
What happens if the court doesn’t approve the orders?
A consent order application may 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 unfair.
Even though both parties have consented to the agreement, the court’s important role is to ensure that any agreement is fair.
In property settlement matters, the division of assets must be considered just and equitable.
If the court doesn’t approve the orders, we will contact you immediately.
Sometimes, the court requires further information.
If you drafted the orders yourself, the court may require you to submit your application in a different format.
We’ll discuss what can be done to fix the issue.
Can the orders be changed?
Once the court makes the orders, they are final, unless there’s a good reason for review.
It’s only in rare circumstances that a court will reconsider its consent orders, but if there’s been dishonesty or fraud, or if it’s impossible to abide by the orders, the court may allow an application for review.
If there’s been a change of circumstances with your children, the court may also allow an application.
If you believe your property consent orders need to be changed, get in touch with us as soon as possible. We’ll discuss your options and work out how best to help.
Does a consent order expire?
If there is an expiration date in the consent order, that is 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.
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.
Do I Need a Lawyer for a Consent Order?
No, you are not legally required to have a lawyer to apply for Consent Orders. You can prepare and file the application yourself through the Court.
However, whether you should proceed without a lawyer depends on how straightforward your situation is.
You may be able to handle it yourself if:
- you and your former partner fully agree on all terms
- your assets and finances are simple
- there are no disputes about superannuation, property, or debts
On the other hand, you should strongly consider legal advice if:
- there is any imbalance in financial knowledge or bargaining power
- you are dealing with property, businesses, or superannuation
- you are unsure what you are legally entitled to
- the agreement involves ongoing financial obligations
Consent Orders are legally binding and final. Once approved, they are difficult to change, even if the outcome turns out to be unfair.
This means mistakes made at this stage can have long-term financial consequences. Getting advice early can help you avoid locking yourself into an arrangement that does not properly protect your interests.
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 completing many documents. It also involves creating an agreement that both parties agree to and consider 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; an informal agreement may suffice. However, as every situation is different, it’s best to seek legal advice for your circumstances.
Why choose Unified Lawyers?
Whether you’re considering applying for a consent order or have already reached 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 going through separations and divorces across Australia.
Call us today on 1300 667 461 or book your free consultation using the button below.