When separating couples reach an agreement about how to divide property, care for children, or split superannuation, the most effective way to make that agreement legally enforceable is through consent orders. Approved by the Federal Circuit and Family Court of Australia, consent orders carry the same weight as orders made after a contested hearing - without the stress, cost and delay of going to trial.
What Are Consent Orders?
Consent orders are written agreements between parties that have been approved by a judicial officer under the Family Law Act 1975 (Cth). Unlike informal arrangements or even signed written agreements, consent orders are enforceable by the Court. If one party fails to comply, the other can apply for enforcement through the Court system.
Consent orders can deal with a wide range of family law matters, including:
- Division of real property, bank accounts, shares and other assets
- Parenting arrangements such as who a child lives with, time spent with each parent, and parental responsibility
- Superannuation splitting between spouses or de facto partners
- Spousal maintenance obligations
- Transfer or sale of specific assets, including the family home
How Are Consent Orders Made?
The process for obtaining consent orders is significantly simpler than contested litigation, but it must be done correctly to avoid delays or rejection by the Court.
- Reach agreement: Both parties negotiate the terms of their arrangement, often with the assistance of lawyers or a mediator.
- Draft the orders: A family lawyer prepares the proposed consent orders in the precise format required by the Court, together with an Application for Consent Orders.
- Sign and file: Both parties sign the application and proposed orders. The documents are then filed with the Court, usually electronically through the Commonwealth Courts Portal.
- Judicial consideration: A registrar or judge reviews the proposed orders. For property matters, the Court must be satisfied the orders are just and equitable. For parenting matters, the Court must be satisfied the orders are in the best interests of the child.
- Orders made: If the Court is satisfied, the consent orders are made and become legally binding on both parties.
Consent orders do not require either party to attend court. In most cases, the entire process is handled on the papers, saving you the time and anxiety of a court appearance.
Why Choose Consent Orders Over an Informal Agreement?
Many separating couples make the mistake of relying on verbal promises or unsigned written agreements. While this may seem easier in the short term, it leaves both parties exposed to significant risk. Without consent orders:
- Either party can change their mind at any time, leaving the other with no legal recourse
- Property transfers may attract stamp duty that would otherwise be exempt under court orders
- There is no mechanism to compel compliance if one party fails to follow through
- Time limits under the Family Law Act continue to run, potentially barring future claims
"Consent orders provide the certainty and enforceability of a court order, with the flexibility and cost-effectiveness of a negotiated agreement."
Time Limits for Filing Consent Orders
It is important to be aware of the time limits that apply to property and financial matters under Australian family law. Married couples must file within 12 months of the date their divorce order takes effect. De facto couples must file within two years of the date of separation, unless the Court grants leave to apply out of time.
Acting promptly protects your entitlements and avoids the additional cost and uncertainty of seeking the Court's permission to file late. If you have reached an agreement with your former partner, our team at Reid+Alexander Lawyers can prepare your consent orders efficiently and ensure they are filed within the required timeframe. Contact us today to discuss your matter.