What is a Consent Order

A Consent Order is an order made by a court when parties have reached an agreement which they want to document to be legally binding. A Consent Order in family law can be made regarding both property and parenting matters. When an agreement has been reached, an application can be made to the court for the orders to be made, however, the parties are not required to attend court. The matter is heard by a Registrar in the Federal Circuit and Family Court of Australia, without appearance by either party.

Consent Orders - Property

When two parties separate, and it is appropriate to make an adjustment to the property of the relationship, we work toward the parties coming to an agreement regarding how their property is to be divided. There are several ways in which negotiations can happen with your ex-spouse, avoiding litigation where possible and keeping your matter out of court.

When an agreement has been reached, we document this via Minutes of Consent and file this together with an Application to the Court to make the Minutes of Consent into an Order of the Court. A Consent Order can include a number of provisions, including:

1. How real property (the matrimonial home or investment property) is to be dealt with;
2. How investments (shares, bitcoin, gold etcetera) are to be dealt with;
3. How liabilities are to be dealt with;
4. How businesses are to be dealt with;
5. Whether there is to be a superannuation split from one party to the other;
6. Spousal Maintenance; and
7. How a default by one party can be dealt with.

The benefits of reaching an agreement with your ex-spouse and keeping your matter out of the hands of the court to decide how your property is to be dealt with have many benefits, including avoiding the delay which comes with litigation, avoiding the emotional impact litigation has on you individually and also the significant cost which comes with family law litigation.  

When considering an application and whether the minutes of consent which have been agreed between the parties will be made an order of the Court, the Registrar is required to consider whether the agreement is ‘just and equitable’ in all the circumstances. In determining whether a property settlement is just and equitable, the Registrar takes into consideration several factors. The relevant factors taken into consideration are set out in our Separation Brochure which can be downloaded here. 

In the event the agreement which you have reached with your ex-spouse may not be ‘just and equitable’ or what a court would consider ‘just and equitable’, you have the option to document the agreement in a legally binding way via a Binding Financial Agreement. A Binding Financial Agreement has several requirements for it to be considered legally binding, however, the courts are not involved in the process of parties entering into an agreement documented in this way. 

The risks of not documenting an agreement reached in a legally binding way (via a consent order of a binding financial agreement) are significant. We often hear from clients wanting advice because they have previously finalised a property settlement with their ex-spouse, however, the ex-spouse is now wanting to reach an agreement regarding a further property settlement. The original property settlement was never documented in a way that is legally binding, and therefore it opens up the opportunity for the other party to initiate a further settlement, which would include all assets acquired since separation and up to the date of final orders or agreement.

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