If you’re in the process of a de facto relationship breakup or marriage separation, you may be required to split your assets and create a parenting/financial agreement. To make such arrangements legally binding, you need to apply for consent orders. But what are they and what do they involve?
Keep reading to learn more, or speak to one of our experienced family lawyers for more information.
What are consent orders?
A consent order is a written agreement that is made with the consent of the parties. It’s often drafted by a lawyer, but it can also be prepared by yourself. By signing the order, both parties agree and comply with them.
Generally, consent orders fall into a few categories: parenting, property and financial orders. This can include matters like:
- Property settlement (including de facto property settlement)
- Spousal maintenance
- Non-financial parenting arrangements*
- Splitting superannuation after separation
*It is also of note that child support cannot be resolved by Consent Orders, but needs to be addressed in the normal manner by the Family Court.
Are consent orders legally binding?
Yes. While the order is made without you having to go to court, the agreement itself must be “sealed” by the court. This makes it enforceable in exactly the same way as if the orders had been made by a judge.
Consent orders are final, but in limited circumstances, the court does have the power to set them aside and make new orders.
What is the purpose of a consent order?
A consent order is a way to make a set of arrangements legally binding, without physically having to go to court. A couple may have reached an agreement, even written it down and arranged for the signing of the document to be witnessed. But in the end, such a document has little legal bearing, and it doesn’t restrict either party from having a change of heart later on.
A consent order, however, can prevent this. Once issued, it ‘draws a line in the sand’ and any future changes to financial status – perhaps by inheritance, work bonus, business success – of either party, are not accessible. If a parent is concerned that their ex-spouse might not comply with their obligations, this order can bring peace of mind to the other parent too.
Consent orders are also cost-effective, less stressful for those involved and can save significant time by avoiding family court.
How do I get a consent order?
If you want to apply yourself, you can apply for consent orders through the Family Court of Australia. There are application forms and information sheets that are available online.
However, it’s highly recommended that you speak to a family lawyer so you understand the meaning and effect of the orders you’re seeking. Even if you decide to make your application on your own, you should obtain legal advice beforehand.
Application time limits
Application must be made within 12 months of divorce, or 2 years from the end of a de-facto relationship.
How long do consent orders take?
Once an application is made, it can take between 4–6 weeks for the consent order to be issued.
This assumes there is no further information required by the court. If further information is required, or clarity sought on some issue, the court will seek rectification, and this will add to the timeframe. Applications made with the advice from a family law attorney will reduce the risk of an uncomplicated process.
Can a court reject a consent order?
Even though both parties have amicably arrived at their suggested solution, issuing consent orders is not automatic. If the court feels that one party is being treated unfairly, it will address this concern.
In the area of parenting arrangements, the court will have the welfare of the child or children as its primary focus.
Learn more: child custody
Can the orders be changed?
The aim of the court is to make the orders final and binding, so changing them is difficult. However, you may be able to set aside the orders by proving the following:
- There was dishonesty or fraud that led to the agreement
- It is not practical to carry out the orders (not merely inconvenient)
- Exceptional circumstances have arisen in relation to the care, welfare and development of the children of the relationship
Owen Hodge is here to help
Need help with your application for consent orders? You can trust the family and divorce lawyers at Owen Hodge. We’ll guide you through the entire process and ensure you and your ex-spouse can come to a mutually beneficial agreement. Call our family lawyers on 1800 770 780 to schedule an initial consultation.
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