What is a Consent Order?
Making a Family Law Agreement Legally Binding
Reaching an agreement with your former partner can bring a welcome sense of relief. However, agreeing on what should happen is not always the final step. Informal agreements may not provide the certainty or legal protection you need as you move forward.
So, what is a consent order? In family law, Family Court consent orders allow separated couples to ask the Court to formally record an agreement about property, finances, parenting arrangements or a combination of these matters. Once approved, the orders are legally binding and enforceable.
Understanding how consent orders work can help you protect the agreement you have reached and approach the next chapter with greater confidence.
What Is a Consent Order from the Family Court?
So what are consent orders in family law? A consent order is a court order made with the agreement of the parties involved. The parties prepare proposed orders reflecting the agreement they have reached and then apply for court approval.
Consent orders can deal with:
Property and financial matters
Spousal maintenance
Parenting arrangements
Parental responsibility and other important decisions concerning children
An application for consent orders is filed with the Federal Circuit and Family Court of Australia. In many cases, the application is considered without either party needing to attend Court.
Although the parties agree on the proposed orders, the Court will not approve them automatically. Different legal considerations apply depending on whether the agreement concerns property and financial matters or parenting arrangements.
What Is the Purpose of Consent Orders?
The purpose of consent orders is to turn an agreed outcome into a legally binding and enforceable court order.
Separating couples sometimes divide their assets or make parenting arrangements through conversations, emails or other informal agreements. These arrangements may appear workable at first, particularly when communication remains respectful. However, circumstances and relationships can change.
Consent orders provide greater clarity by setting out what each person must do and, where relevant, the time in which it must be done. This can reduce uncertainty, minimise the possibility of future disputes and give both parties a clearer foundation to move forward on.
Are Consent Orders Legally Binding?
Yes. Once made by the Court, consent orders are legally binding on the parties.
Each person must comply with the terms of the orders. If one party fails to carry out an obligation, the other party may be able to apply to the Court for enforcement. A breach can have serious legal and financial consequences, depending on the circumstances.
Consent orders cannot simply be changed because one party later becomes dissatisfied with the agreement. Property consent orders may only be set aside in limited circumstances. Parenting orders may be reconsidered in some situations, particularly where circumstances have changed significantly and reconsideration would be in the child’s best interests.
It is therefore important to understand both the immediate and longer-term effect of the proposed agreement before providing your consent.
Why Is an Informal Property Agreement Not Enough?
After working through the emotional and practical difficulties of separation, it can be tempting to rely on the agreement you have reached and consider the matter finished. Unfortunately, transferring money, dividing personal property or agreeing that each person will retain particular assets does not necessarily finalise your legal relationship.
Without consent orders or a properly prepared Binding Financial Agreement, an informal property settlement may not prevent your former partner from making a future application to the Court.
The property considered in a later family law matter may not be limited to the assets you held at separation. It can potentially include assets, liabilities and financial resources held when the property matter is formally determined. This may expose wealth accumulated after separation to consideration as part of the overall property settlement.
Formalising your agreement can provide certainty about your respective financial positions and reduce the risk of the same issues resurfacing in the future.
What Can Property Consent Orders Cover?
Property consent orders can be tailored to the assets, liabilities and financial arrangements involved in your separation. Depending on your circumstances, the proposed orders may address:
The sale or transfer of the family home or an investment property
The division of sale proceeds
Bank accounts, shares, investments and digital assets
Vehicles and other personal property
Business interests, companies and trusts
Responsibility for mortgages, loans, credit cards and other liabilities
Superannuation splitting
Spousal maintenance
Payments from one party to the other
Documents that must be signed to give effect to the agreement
Timeframes for completing each step
What may happen if one party fails to comply
The wording of property orders matters. The orders should clearly explain what each party is required to do and account for practical issues that could otherwise delay or prevent the property settlement from being completed.
Will the Court Approve Our Property Consent Orders?
Before making property consent orders, the Court must be satisfied that the proposed outcome is just and equitable.
The Court considers the parties’ financial circumstances and the factors set out in the Family Law Act 1975. These may include:
The assets, liabilities and financial resources of each party
Financial and non-financial contributions
Contributions to the welfare of the family, including homemaking and parenting
Each person’s current and future circumstances
Any other relevant considerations under the Family Law Act
Both parties must provide full and accurate information about their financial circumstances when applying for consent orders. This allows the Court to properly consider the proposed agreement.
An agreement does not necessarily need to reflect the exact outcome a judicial officer may have ordered after a contested hearing. However, the Court must still be satisfied that making the proposed property orders would be just and equitable.
Can Consent Orders Cover Parenting Arrangements?
Consent orders can also formalise parenting arrangements. A parenting consent order may address matters such as:
Who a child lives with
The time a child spends with each parent or other significant people
Parental responsibility for major long-term decisions
Day-to-day care arrangements
Communication with a child
Holidays and special occasions
Travel and passports
Changeovers and other practical arrangements
When considering proposed parenting orders, the Court must regard the best interests of the child as the paramount consideration. Relevant information about family violence, child abuse or other risks must be disclosed to the Court.
Parenting consent orders are different from a parenting plan. A written parenting plan can record an agreement between parents, but it is not legally enforceable in the same way as a court order.
Legal advice can help you decide whether consent orders or another form of parenting agreement is more appropriate for your family.
How Do I Apply for Consent Orders Through the Family Court?
An application for consent orders can generally be made after the parties have reached an agreement. You do not need to commence contested court proceedings simply to ask the Court to approve agreed orders.
The process generally involves:
Confirming the complete agreement
Both parties should agree on all relevant terms and understand how the proposed arrangements will operate in practice.
Obtaining legal advice
A family lawyer can explain the legal consequences of the agreement, identify issues that may have been overlooked and advise whether the proposed orders are suitable for your circumstances.
Preparing the necessary documents
The parties must prepare an Application for Consent Orders and the proposed orders they want the Court to make. Additional documents may be required depending on whether the application concerns financial or parenting matters.
Filing the application
The documents are generally filed electronically through the Commonwealth Courts Portal. A filing fee applies, although an exemption may be available in some circumstances.
Court consideration
A judicial officer considers the application. The Court may make the orders, request further information or require changes before approving them.
Consent Orders or a Binding Financial Agreement?
Consent orders and Binding Financial Agreements are two different ways of documenting a financial agreement following separation.
Consent orders require court approval. The Court must be satisfied that the proposed property orders are just and equitable before making them.
A Binding Financial Agreement is a private legal agreement and does not require court approval. However, strict legal requirements must be followed for the agreement to be binding. Each party must receive independent legal advice before signing it.
A Binding Financial Agreement may be considered where the parties want to structure their financial arrangements in a way that may not be appropriate for consent orders. However, it is not automatically the better or simpler option. Binding Financial Agreements can also be challenged in certain circumstances.
The right approach will depend on the agreement reached, the parties’ financial circumstances and the protections each person requires. A qualified family lawyer at Omnia Legal can explain the advantages, limitations and risks of both options.
Are There Time Limits for Property Consent Orders?
Time limits apply to applications for property settlement and maintenance:
Married couples generally have 12 months from the date their divorce becomes final to apply.
Former de facto partners generally have two years from the date the relationship ended to apply.
You can formalise a property settlement after separation without waiting to divorce. If the relevant time limit has already passed, the Court’s permission may be required, although the rules applying to an agreed application can depend on the circumstances. Permission is not guaranteed, so it is important to obtain legal advice promptly.
Can Consent Orders Affect Transfer Duty?
Where real property is transferred between former partners as part of a property settlement, a transfer duty exemption may be available if the transaction gives effect to a qualifying court order or financial agreement.
In Queensland, the relevant sealed court order or financial agreement must meet specific requirements. It must pre-date the transaction, identify the property being transferred and clearly state who will receive it.
An informal agreement may not provide the documentation required to obtain the exemption. It is important to obtain advice before transferring property, as the timing and wording of the legal documents may affect whether the transaction qualifies.
What Are the Benefits of Property Consent Orders?
Reaching an agreement and applying for consent orders can allow separated couples to resolve their financial matters without asking the Court to determine the outcome through contested proceedings.
Depending on the circumstances, the benefits may include:
Greater certainty about your financial future
A legally binding and enforceable outcome
Clear responsibilities and completion timeframes
A reduced risk of future property disputes
More control over the agreed outcome
Less emotional strain than contested litigation
Lower legal fees than taking a matter through a final hearing
A more private and cooperative way to resolve family law matters
Consent orders can offer valuable reassurance, but they should be prepared carefully. An unclear, incomplete or impractical order can create further difficulty rather than providing the closure both parties are seeking.
How Can Omnia Legal Assist You?
Reaching an agreement is an important step. Making sure it is properly documented can give you the clarity and protection you need to move forward.
Omnia Legal can assist you by:
Reviewing the agreement reached with your former partner
Explaining whether consent orders or a Binding Financial Agreement may be more appropriate
Preparing your Application for Consent Orders and proposed orders
Identifying practical or legal issues that should be addressed
Assisting with property, financial and parenting consent orders
Guiding you through the filing and court approval process
Our family lawyers provide clear, compassionate advice tailored to your circumstances. We take the time to ensure you understand your options and feel confident about the decisions you are making.
To arrange an obligation-free complimentary phone consultation, contact Omnia Legal on (07) 5415 0248 or email info@omnialegal.com.au.
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.