Consent Orders are almost always the best way to legally document a separation agreement.
The purpose of this post is to provide you with information about the benefits of Consent Orders and the steps involved in obtaining them.
What are Consent Orders?
The Family Court encourages people to reach an agreement about family law matters arising from separation, including:
– the division of relationship property (known as a property settlement);
– spousal maintenance; and/or
If you have reached an agreement with your former partner and want the agreement to become a formal and binding Order, you must apply to the Family Court for ‘Consent Orders’. Consent Orders can be made without either party (or their solicitors) ever having to physically attend Court.
What are the benefits of Consent Orders?
In most cases, Consent Orders are the most cost-effective option to legally document your family law matters.
Another benefit of using Consent Orders is that there are exemptions to paying duty on transfers of property. For example, stamp duty on the former matrimonial home.
If you and your former partner can reach an agreement, then it’s your decision and not up to a Judge to decide for you. That means that you and your former will have the autonomy to be able to tailor the agreement to work for your situation, provided of course it is still within the confines of what the law allows.
Consent Orders will finalise your family law matters. This means that your former partner cannot come back in the future for another property settlement or change parenting arrangements without your agreement.
So, how does it work?
While every family law matter is different and will depend on its own facts, we summarise below the common steps that people may need to complete to obtain Consent Orders:
Step 1 – Initial meeting with a family lawyer
You should obtain legal advice before deciding how to reach an agreement about Consent Orders. This is because you don’t know what you don’t know.
A lawyer will be able to give you recommendations on how you can tailor the agreement to work for you and most importantly, the dos and don’ts in family law.
Step 2 – Negotiating an agreement
This involves discussions with your former partner (or their solicitor) to reach an agreement.
The negotiation process will usually involve tactical considerations and compromises. It requires a comprehensive understanding of the “big picture”, each of your objectives, as well as how the law will apply to your situation.
There are various ways people negotiate an agreement. Some will receive initial legal advice and then be able to reach an informal agreement between themselves. Lawyers are then retained to simply draft and review the legal documents to formalise that agreement (see step 3). Others have agreed on some issues, but require the help of their lawyers to reach final agreement, often through participating in mediation.
Step 3 – Drafting legal documents
This involves the preparation of the following legal documents:
– Application for Consent Orders
This document is where you and your former partner record your personal details so the Court can decide whether they will approve your agreement.
The Court must be satisfied that the agreement is just and equitable (for property settlement matters) and/or in the best interests of the children (for parenting matters) before they can approve Consent Orders.
– Consent Orders
This document is where the orders you are asking the Court to approve (based on the agreement you have reached with your former partner) are recorded.
– Superannuation Affidavit
This document is only required if superannuation is being transferred from one party to the other.
Step 4 – Filing in the Court
Once the Consent Orders are drafted and executed by all parties, the documents are then filed. This involves lodging the documents in the Family Court.
The parties (or their solicitor) will be notified when the documents are approved by receiving a sealed (signed and stamped by the Court) Order. The Order will then be legally binding on all parties.
In our experience, the filing process can take anywhere between 2 to 6 weeks.
Step 5 – Carry out the agreement
Once the sealed Court Order is received, both parties may be required to take steps to carry out the agreement. This could include selling, transferring or disposing of assets, debts and/or superannuation.
What will it cost me to get Consent Orders?
The cost of Consent Orders will depend on the terms you are seeking and how much negotiation will be required. We can provide an estimate of costs after we obtain your personal details in an initial appointment.
A fee of $165 is charged by the Family Court to file Consent Orders.
Would you like further information?
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based on your particular circumstances.