If you and your former partner have reached an agreement on parenting and/or property division, then there is a process available where you can obtain consent Court orders without ever having to go to Court.
A consent order is a written agreement that puts in place arrangements between you and your former partner/spouse. The agreement becomes a legally binding court order that can be enforced by the Family Court. Consent orders allow the separation to be finalised quickly and can significantly reduce the cost for both parties.
If you can reach an agreement, then a consent order can cover:
Consent orders can be made if court proceedings have been issued and a negotiated settlement has been reached. However, most importantly, if proceedings have not yet commenced, you can still ask the Court to make consent orders and avoid the time and costs associated with going to Court. The key advantages of this are:
Where proceedings have not commenced, an application for consent orders and proposed consent orders have to be filed in the Family Court of Australia. While a do‑it‑yourself kit is available to download from the Family Court of Australia website, it is advisable to seek legal advice from a family lawyer. The drawing of orders can be complex, and it is important you clearly understand the effect of the orders you seek, to ensure any unnecessary consequences are avoided.
Once the documents are filed, a Registrar of the Family Court will review the documents. The Registrar must be satisfied that property division is just and equitable and that any parenting orders are in the best interests of the child(ren). If the Registrar is not satisfied, they will seek further explanation from the parties.
Consent orders cannot be obtained through this process when the arrangements include:
In these instances, Court proceedings will have to be issued.
When drafting the agreement, there are some key matters you must address to satisfy the Registrar of the Family Court as follows:
In relation to parenting matters, it is important to provide information that covers:
In relation to the division of property, you must include information that covers:
If there is to be a splitting order – which means that money from one partner/spouse’s superannuation fund is paid into the other partner/spouse’s fund – then the consent of the superannuation fund Trustee from which the money will be transferred first has to be obtained. This must be done before consent orders are filed.
The application requires the parties to set out in some detail all of their assets such as real estate, motor vehicles, bank savings, superannuation and shares, along with any liabilities such as mortgages and loans. Parties will also be required to submit information relating to income, parenting and homemaking responsibilities and financial and non-financial contributions that have been made to the accumulation of assets.
In relation to real estate, the parties should agree on the value of the matrimonial property before applying for consent orders. This value could be based on the Valuer‑General’s value of the property – found on rates notices – or from appraisals obtained from real estate agents.
Some supporting documentation for the aforementioned must be filed with the application.
A failure to address any of the aforementioned matters may result in the Registrar rejecting the initial agreement, which will increase the time and cost associated with your separation.
It is important to understand that consent orders must be filed within 12 months of any divorce order or two years of the breakdown of a de facto relationship. If you are married and separated but have not divorced, then there is no time limit. However, it is preferable for property division to take place promptly because there needs to be a valuation of the assets at the time of separation.
If you have decided to separate and can reach an amicable agreement regarding the division of your assets, applying for a consent order is a sensible decision that will reduce the costs that are incurred by proceeding to Court. If you decide this is a process you want to undertake, seek advice and take the time required to make informed decisions based on your set of circumstances.
For more information speak to our family lawyer, Joanne Cliff, and ask about our fixed costs for preparation of these documents.
This communication provides general information which is current as at the time of production. The information contained in this communication does not constitute advice and should not be relied upon as such. Professional advice should be sought prior to any action being taken in reliance on any of the information. Should you wish to discuss any matter raised in this article, or what it means for you, your business or your clients' businesses, please feel free to contact us.