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 get the agreement transferred into court orders.
Where you both agree to a court making orders based on a property settlement agreement, these orders are known as consent orders.
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 need 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
– Being entitled to exemptions, for example, an exemption of 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 us 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. We recommend that you contact us for further information.
How do I get consent orders for a property settlement agreement?
While you’re negotiating your property settlement agreement, 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 the number one priority.
If you decide on property consent orders, we’ll 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. We’ll also let you know when the order has been made.
What does the court consider when making property settlement agreement consent orders?
Even though you and your former partner are consenting to the orders, the court won’t simply rubber-stamp the agreement. It must be satisfied that you’re applying within the time-frame and that the orders are just and equitable, meaning that they are fair to both you and your former partner.
What happens if the court doesn’t approve the orders?
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 changing, get in touch with us as soon as possible. We’ll discuss your options and work out how best to help