Consent Orders in Family Law: What You Need to Know
When separating couples are able to reach an agreement about parenting or financial matters, the next question is often: how do we make that agreement legally binding?
Consent Orders allow separated couples to formalise agreed arrangements through the Court without having to go through a contested hearing. They can provide certainty about parenting arrangements, property settlement and other financial matters, while giving both parties clear and legally enforceable obligations moving forward.
What Are Consent Orders?
Consent Orders are orders made by the Federal Circuit and Family Court of Australia with the agreement of both parties.
Rather than asking a judge to decide the dispute after a contested hearing, the parties first reach an agreement and then ask the Court to make orders reflecting what they have agreed.
Once approved by the Court, Consent Orders are legally binding and have the same effect as orders made following a hearing.
This is an important distinction from an informal agreement. Reaching an agreement with your former partner can be a significant step forward, but properly formalising that agreement can provide greater certainty and protection for the future.
What Can Consent Orders Cover?
Consent Orders are commonly used to formalise parenting arrangements and property and financial settlements.
Parenting Consent Orders
Parenting orders may address:
▸ Who the children live with and the time they spend with each parent
▸ How major long-term decisions concerning the children will be made
▸ Communication between children and their parents
▸ Arrangements for school holidays, birthdays and other special occasions
▸ Other practical arrangements relating to the children's care and wellbeing
Property and Financial Consent Orders
Financial orders may deal with:
▸ The division or transfer of real estate and other property
▸ Superannuation
▸ Savings, investments and other assets
▸ Debts and liabilities
▸ Spousal maintenance, where applicable
Formalising a property settlement can also help bring the parties' financial relationship to an end and reduce the risk of disputes arising later.
How Do You Apply for Consent Orders?
Before applying, both parties need to reach agreement about the orders they want the Court to make.
An Application for Consent Orders is then prepared together with the proposed orders and filed with the Court.
For financial matters, the Court must be satisfied that the proposed orders are just and equitable. For parenting matters, the Court considers whether the proposed arrangements are in the best interests of the children.
Consent Order applications can generally be considered by the Court without either party having to attend a hearing.
For property matters, it's also important to be aware of time limits. Applications generally need to be made within 12 months after a divorce becomes final for married couples or two years after the breakdown of a de facto relationship.
Parenting Plans vs Consent Orders: What's the Difference?
A parenting plan and Consent Orders can both record arrangements agreed between separated parents, but there is an important legal difference.
A parenting plan is a written agreement between parents but is not itself legally enforceable.
Consent Orders are approved by the Court and are legally binding. If one party fails to comply with the orders, there may be legal consequences.
Which option is appropriate will depend on your family's circumstances and the type of arrangements you need to put in place.
Can Consent Orders Be Changed Later?
Consent Orders are intended to provide certainty, so changing them isn't necessarily as simple as changing an informal agreement.
In some circumstances, orders can be varied by agreement or through a further application to the Court. The requirements will depend on whether the orders relate to parenting or financial matters and the circumstances that have changed.
Getting legal advice before agreeing to Consent Orders can help ensure the proposed arrangements properly reflect what you intend and consider the longer-term consequences.
Why Properly Formalising an Agreement Matters
It's tempting to think that once you and your former partner have agreed about who keeps what, the property settlement is finished.
That isn't necessarily the case.
An informal agreement may leave important financial issues unresolved and can create significant problems years after separation.
Our article Consent Orders vs Financial Agreements: Why Properly Documenting Your Property Settlement Matters explains this in more detail—including what can happen when an apparently settled property matter is never formally finalised.
Need Advice About Consent Orders?
If you've reached an agreement with your former partner—or you're working towards one—our experienced family lawyers can help you understand the best way to formalise your arrangements.
KLM Solicitors can assist with Consent Orders relating to parenting, property settlement and financial matters and provide clear advice about the legal effect of the arrangements you're considering.
Contact KLM Solicitors today to arrange a confidential consultation.