How do consent orders work?
Consent Orders are legal agreements with the power of Court backing, made between two parties that have reached a mutual agreement on how to settle legal issues at the end of their relationship.
Consent Orders are commonly made in the context of family law, where a couple is able to come to an understanding about how to divide their assets, property, and child custody arrangements.
Another way to understand them is as private agreements that are legally binding and enforceable by a court of law.
They allow the separating parties to formalise their agreement themselves rather than having the Court (and a judge or magistrate) impose a decision on them. The process is designed to ensure an outcome is fair and equitable for both individuals.
Why do we need Consent Orders?
Consent Orders allow parties to have control over the outcome of their legal dispute and can often result in a quicker, and cheaper resolution compared to court proceedings.
What is the difference between a Consent Order and a financial agreement?
Couples will often reach an understanding and document it into a formal agreement (aka a financial agreement, or a binding financial agreement).
Financial agreements are often used when parties wish to have more control over their property settlement arrangements, but they are not appropriate for all situations.
Unlike a Consent Order, a financial agreement is not filed in court, does not require court approval, and cannot be enforced by a court.
In comparison, consent orders have the advantage of being a court order. If they are contravened, they can be enforced through the Courts.
The two categories of Consent Orders
There are two categories of Consent Orders that can be made: Financial Consent Orders and Parenting Consent Orders.
Parenting and financial orders can be sought in the same application, though there are different considerations in each.
Financial Consent Orders
Financial Consent Orders relate to the division of property, assets, and liabilities between the parties. This can include the division of real estate, bank accounts, investments, and debts.
Financial Orders can also address spousal maintenance payments.
Parenting Consent Orders
Parenting Consent Orders relate to the care and responsibility of children. This can include who the children will live with, who will make decisions about the children’s health and education, and how much time each parent will spend with the children.
See our article here on Consent Orders compared with parenting plans.
Consent Orders need to be “just and equitable”
Importantly, for a court to approve a consent order, it must believe that the orders are ‘just and equitable’ for both parties. A BFA has no such requirement and thus can result in one partner having a much larger proportion of assets than the other.
In certain circumstances, having one partner receive a larger proportion of assets may be practical and fair, especially if one individual will have the primary responsibility for care of children.
Thus, as a Binding Financial Agreement does not need court approval, it is more flexible than a consent order. However, in most circumstances where an equal division of property is desired, a consent order may be a better option to ensure that the resulting outcome is fair in the eyes of the court.
Can Consent Orders be overturned in Australia?
One benefit of applying for a consent order is that they are final and legally binding. This means they are difficult to change and thus a court will only put a consent order aside in exceptional circumstances.
Reasons why a court would overturn a consent order include if:
- There was evidence of dishonesty or fraudulent behaviour in the process of creating the agreement
- It is impractical to carry out the order because of a dramatic change in circumstance
- Significant issues have arisen regarding the care and welfare of any children involved
The court will consider various factors when deciding whether to set aside the Consent Orders, including the impact of the change in circumstances and the parties’ reliance on them.
Are Consent Orders worth it?
In many scenarios, consent orders can be the fastest way to bring a sense of closure and allow both parties to move on with their lives. Minus the drama and cost of litigation through the Courts.
However they shouldn’t be rushed, and it’s vital to seek legal advice before entering into any Orders to ensure that the settlement is fair and reasonable and takes into account the parties’ future needs.
What can’t be sought in Consent Orders?
There are certain legal issues that cannot be addressed in Consent Orders. For example, Orders cannot be made for child support arrangements, as these are dealt with separately under the Child Support (Assessment) Act 1989.
Here are some common reasons why consent orders may be rejected:
- The financial orders were not considered “just and equitable.” The orders must take into account the contributions of each party and their future needs, similar to how a court would arrive at a property settlement.
- The parenting orders were not considered to be in the best interests of the children. Simply reaching an agreement with the co-parent is not enough to satisfy the court that the orders are in the children’s best interests.
- The orders were not drafted in a way that would make them legally enforceable.
- The forms were not filled out correctly. This could include not completing relevant sections, failing to have affidavits correctly sworn and witnessed, or providing imprecise information.
- The financial orders included superannuation orders that did not follow the prescribed procedure. Specific steps must be taken before the court will approve superannuation splitting orders.
- The orders did not contain appropriate contingency clauses (if applicable).
- The proposed application for consent orders was not consistent with the proposed minute of consent orders. These documents must align with each other.
- The minute of consent orders was not drafted in a way that made sense or could give effect to the parties’ wishes.
- A jurisdictional requirement was not complied with. For example, failing to provide an affidavit as to jurisdiction if the parties are de facto partners.
- The application was submitted out of time. If the deadlines for making an application have passed (within a year of divorce or within two years of separation for de facto partners), the court’s permission must be obtained before filing an application.
Consent Orders in NSW
In New South Wales, Consent Orders are made under the Family Law Act 1975. The parties must file an application with the court, along with a draft of the proposed orders. The court will review the proposed Orders to ensure that they are just and equitable and in the best interests of any children involved. If the court is satisfied with the proposed Orders, it will make them final and binding.
How long do Consent Orders take?
The length of time it takes to obtain Orders can vary depending on the complexity of the issues involved and how quickly the parties can reach an agreement. In some cases, Orders can be obtained within a few weeks, while in more complex cases, it may take several months.
What is an example of a parenting Consent Order?
An example of a parenting Consent Order could be an agreement between the parties on where the children will live, how much time they will spend with each parent, and who will make decisions about their health and education. The Consent Order could also include provisions for the parties to attend mediation if there is a dispute about the parenting arrangements in the future.
Are there any time restrictions in filing Consent Orders for financial orders?
You can file an Application for Consent Order within 12 months of a divorce or 2 years from the breakdown of a de facto relationship.
What are spouse maintenance orders?
Spouse maintenance orders are orders made by a court requiring one spouse to provide financial support to the other spouse after a separation or divorce.
Spouse maintenance orders are made in situations where one spouse is unable to support themselves adequately due to their age, health, or other factors.
What are de facto partner maintenance orders?
De facto partner maintenance orders are similar to spouse maintenance orders, but they apply to couples who are not married but have lived together in a de facto relationship.
To be eligible for de facto partner maintenance, the parties must have been in a de facto relationship for at least two years or have a child together.
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