What are consent orders or an application for consent orders?
Consent orders are orders made by the family courts with the agreement of both of the parties about their financial affairs or children.
You are able to apply to the family courts for consent orders in situations where you have reached an agreement in relation to your property. You apply to the family courts for consent orders by lodging a an application for consent orders.
In many cases, parties are usually able to reach an amicable agreement without going to family court or without family lawyers. The agreement may be about property settlement, spousal maintenance, child support and superannuation splitting. The parties are then able to complete and file in the family court an application for consent orders to obtain final financial consent orders.
An application for consent orders is submitted to the family courts in the prescribed format and must also include an attached minute of consent orders setting out your agreement.
Do I need consent orders?
An amicable agreement is not binding. Because it is not binding, both parties can change their mind. This would happen if their relationship took a turn for the worse. An agreement about property, spousal maintenance or child support is not final or binding until your formalise the agreement by obtaining consent orders or entering a binding financial agreement.
If you have reached an amicable agreement about financial matters, then you must do consent orders or enter a binding financial agreement.
You cannot make the agreement binding by entering a gentleman’s agreement, making a verbal promise, exchanging e-mails, signing a contract, signing a statutory declaration or by using any other method. None of these are binding or final. There are only 2 ways to make an agreement final and binding, consent orders or binding financial agreement.
There are other benefits of obtaining consent orders. The parties may be able to avoid the payment of stamp duty or capital gains tax by formalising their agreement before the transfer of the assets.
Obtaining consent orders are part and parcel of doing a final property settlement.
You should not transfer or sell significant assets without consent orders in place. If you are contemplating transfer or sales without consent orders, then you must obtain legal advice from an experienced family lawyer immediately.
Where can I find samples of a consent order?
Do I need a family law lawyer?
It is highly recommended that you obtain legal advice from an experienced family law lawyer before you engage in negotiations with the other party. That will ensure that you are not being unreasonable or that you are not giving away your rights. You can obtain that legal advice by attending a reduced fee initial consultation. Once you know your family law rights, then you can potentially proceed to negotiate an agreement with the other party.
The matters that may be dealt with in a consent order application are important and we recommend that you get proper legal advice beforehand.
If you have an agreement, you do not need a family lawyer to do consent orders. You can draft and submit the consent orders yourself.
An application for consent is a technical legal document. The family courts review each application very carefully. If the family court finds that an application for consent is deficient, then the family court will not make the orders and will requisition the application. The parties will then have to rectify the errors identified in the requisition.
We regularly help clients who have received these requisitions. Some requisitions are easily addressed. If the requisitions are serious, then the application for orders may have to be redrafted and submitted. The main drawback on receiving a requisition, is that many weeks will have elapsed while the family court considered the original application. Then a further period of time will be required to rectify the requisition. That period of time will vary depending on the nature of the requisition. These delays are no doubt stressful and costly. They are easily avoided if the application for consent orders is drafted properly in the first instance.
Please take note, that in our experience, most parties are unable to draft an application for consent properly the first time. This means that if you are drafting the application for consent yourself, your a mostly likely going to get requisitioned. We recommend that you do not draft consent applications yourself, especially if time is of the essence.
As consent orders will bind both parties, it is important and highly recommended that parties have them prepared or at least reviewed by an experienced family law lawyer.
How long do consent orders take?
In most cases an application for consent can be prepared in under 7 days and then filed with the family courts.
The filing of an application for consent in the family courts does not mean that the parties have to go to court, which is a common misunderstanding. The family courts process the application for consent in chambers and there is generally no requirement for the parties to ever have to personally attend court. A court attendance is rarely required.
After the date of filing, the family courts then take between 4 to 10 weeks to process an application for consent orders. You can apply for more urgent processing in limited circumstances.
The above assumes that the parties have reached an amicable agreement beforehand. If you have not reached an agreement, then you cannot submit an application for consent . If you have not reached an agreement, then we recommend that you take advice from an experienced family lawyer about the steps to reaching an amicable agreement. The time frame required to reach an agreement will vary from case to case. The time to reach an agreement is not included in above.
How much does it cost? Can I get fixed fees for consent orders?
We charge fixed fees for preparing and filing an application for consent . The fixed fee payable will vary depending on the complexity of the orders and the work required to be performed. Please telephone on us for a 15 minute free telephone consultation or to arrange a reduced fee initial consultation to discuss the fixed fees payable or if you have any other questions.
When should I apply?
You do not have to wait for any particular period of time before applying for orders. In theory it is possible to obtain orders in relation to financial matters at any time. This is unlike applying for a divorce which of itself requires you to wait a minimum of 12 months after the date of separation before you can lodge there application for a divorce.
To remove the stress and worry, it is strongly recommended that you prepare consent orders if you have reached an agreement without delay. This ensures that both parties will stick to the agreement and will not change their mind. It does not matter the actual settlement of any property will delayed for a period of time, the orders are able to be made in any event beforehand. Sometimes parties make the mistake of waiting to prepare an application for consent orders until the property is listed for sale or settlement of the sale.
When do I need a binding financial agreement?
Orders will be the manner in which most parties resolve their financial matters. In limited circumstances though consent orders are not able to be made, even though both parties agree to the proposed settlement. In those circumstances, the parties may need to complete a binding financial agreement. The family court may not make consent orders pursuant to an application for consent orders, if the financial settlement is not fair to both parties.
Can consent orders be set aside?
Once final property orders have been made, you cannot set them aside except in limited circumstances.
Circumstances in which orders can be varied or set aside are as follows:
- If both parties consent to changing the orders.
- There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
- In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out.
- A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
- In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the for the order.
- A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.
Where can I find more information about family law consent orders in Australia?
You can obtain more information about and download a blank application for consent orders from the family court’s website, which can be accessed through our Links page.
Beacon Family Law is able to assist you to draft applications for consent orders. Note sure, then telephone us to arrange a no obligation 15 minute free initial consultation or to book a reduced fee initial consultation.
If you and your partner have reached an agreement, telephone us to discuss consent orders. We offer lump sum and reduced fee packages to draft consent order.