About Consent Orders
Consent Orders are a legally binding way for separated couples to formalise agreements about parenting arrangements, property division, and financial support without the need for a lengthy court battle. They offer clarity and enforceability, ensuring both parties have clear guidelines to follow and that disputes are minimised. In this guide, we will explain how Consent Orders work, their benefits, and why they might be the right choice for you.
What Are Consent Orders?
Consent Orders are written agreements approved by a court that cover arrangements related to parenting, property, and financial matters following separation. In parenting cases, they outline where children will live, how much time they will spend with each parent, and how major decisions regarding their welfare will be made. In financial and property matters, Consent Orders deal with the division of assets, liabilities, and superannuation.
Once approved by the court, Consent Orders become legally binding. This means that if one party fails to comply, the other can take legal action to enforce the terms of the agreement. Consent Orders provide a way for parties to formalise their arrangements without the stress and cost of a contested court process.
Who Can Apply for Consent Orders?
Consent Orders can be applied for by married couples who have separated or divorced, de facto couples who have separated, and even grandparents or other individuals concerned with the care, welfare, or development of a child. However, there are time limits to consider. For property and financial matters, married couples must apply within 12 months of their divorce being finalised, while de facto couples must apply within two years of separation. These timelines are important, as missing them may complicate or limit your ability to seek legal remedies.
What Are the Benefits of Consent Orders?
Consent Orders provide several advantages for separating couples. First, they offer legal certainty by formalising agreements into binding orders that are enforceable by the court. This clarity reduces the likelihood of future disputes. Second, they allow parties to avoid court disputes, as they provide a structured way to resolve matters amicably. Third, Consent Orders are flexible and can cover a range of issues, from parenting arrangements to complex property divisions, tailored to the specific needs of the parties involved. Lastly, their enforceability ensures that both parties adhere to the agreement, and for property matters, they provide finality, preventing future claims against assets.
How Do You Apply for Consent Orders?
The process of applying for Consent Orders involves several steps. First, the parties must negotiate and agree on
assistance of lawyers. Once an agreement is reached, the terms must be documented in the correct legal format. The court provides a ‘Form 11 Application for Consent Orders’, which must be completed in detail.
The completed application is then filed with the Family Court of Australia or the Federal Circuit and Family Court of Australia, along with any supporting documents, such as financial statements for property matters. A registrar or judge will review the application to ensure that the agreement is fair, reasonable, and, in the case of parenting orders, in the child’s best interests. If the court approves the orders, they become legally binding. However, if the court has concerns about the fairness or practicality of the agreement, it may request additional information or suggest amendments.
What Issues Can Consent Orders Cover?
Consent Orders are versatile and can address a wide range of issues. For parenting matters, they can include living arrangements, time spent with each parent, methods of communication (e.g., phone or video calls), decisions about education and medical care, and arrangements for special occasions like holidays and birthdays.
In property and financial matters, Consent Orders can deal with the division of assets such as real estate, savings, investments, and superannuation, as well as the allocation of debts like mortgages and loans. They can also include agreements about the sale or transfer of property and financial support for children. While child support is usually managed by Services Australia, parties may choose to include specific child support terms in their Consent Orders if they prefer.
What Happens If the Court Does Not Approve the Orders?
The court may reject the application for Consent Orders if it determines that the agreement is not fair or reasonable. In parenting matters, the court must be satisfied that the arrangement is in the best interests of the children. For property matters, the court assesses whether the division of assets is equitable and takes into account factors such as the financial and non-financial contributions of both parties and their future needs.
If the court has concerns, it may request additional evidence, suggest changes, or ask the parties to reconsider their agreement. In some cases, further negotiations or mediation may be necessary to reach a satisfactory outcome.
Can Consent Orders Be Changed?
Consent Orders can be modified if circumstances change and both parties agree to the new terms and the Court accepts the new Orders. This can be done by submitting a new application for Consent Orders or, in the case of parenting arrangements, by entering a new Parenting Plan. A Parenting Plan is less formal than Consent Orders but can serve as evidence in court if disputes arise.
If the parties do not agree on changes, one party can apply to the court for Orders to be varied (changed) or set aside (treated as if the Orders were never made). The Court will review the application to determine whether there is reason for the Orders to be varied or set aside. An Application to vary or set aside Orders is a complex and it is only in limited circumstances within which the Court will allow for this to occur.
What Happens If Someone Breaches a Consent Order?
If one party breaches a Consent Order without a reasonable excuse, the other party can seek enforcement through the court. The court has the authority to impose penalties, such as fines, or even imprisonment for serious breaches. In some cases, the court may modify the orders to address the breach or make them more practical to enforce. It is important to act promptly if a breach occurs, as delays can complicate enforcement efforts.
Do You Need a Lawyer for Consent Orders?
While it is possible to apply for Consent Orders without legal representation, seeking advice from a lawyer is highly recommended. A lawyer can ensure that the orders are drafted correctly, advise you on whether the terms are fair and reasonable, and represent your interests during negotiations. They can also assist in filing the application and addressing any concerns raised by the court.
Consent Orders are a practical and effective way to formalise agreements after separation, providing legal certainty, enforceability, and a clear framework for moving forward. Whether you are addressing parenting arrangements, property division, or financial matters, Consent Orders can help you avoid disputes and establish a stable foundation for the future. If you are considering Consent Orders, seeking legal advice early in the process can help you achieve the best possible outcome.