What are they?
Consent orders in family law generally refer to an order (being a decision or judgment) of the Family Court of Australia which is made with the consent of both parties/spouses.
By this process, the separating parties agree how their property, financial and childcare affairs are to be arranged following the ending of their relationship. They record that agreement in writing and ask the Family Court to make an order which exactly mirrors their written agreement.
Orders of the Family Court made by this process are referred to in this article as ‘Consent Orders’.
While we are a Queensland Firm, the Family Court is a Federal Court, so this is process is the same wherever you are in Australia.
Why are they useful?
Consent Orders are an order or decision of a Court. They therefore transform the parties agreement about their separation into a decision of a Court. Once made, a spouse cannot back out or reverse their agreement to the contents of the orders.
Consent Orders are also useful because the parties are not required to seek independent legal advice before they enter into them. In this way they differ from a Binding Financial Agreement (commonly known as a “BFA” or “pre-nup” or “post-nup”) where detailed independent legal advice is generally required for both parties to make such an agreement. Consent Orders in turn can be a more cost-effective way of finalising matters relating to the relationship where the parties are in agreement.
Further unlike a Binding Financial Agreement, which can be made before, during or after the relationship between the parties has ended, Consent Orders are made after the relationship has ended.
Because Consent Orders are an order of the Court it is harder for the parties to later dispute the terms of the agreement reached. In turn Consent Orders generally provide the parties a much higher degree of certainty the terms of their agreement reached will remain binding and in force, even if one party later tries to challenge them.
How do I get Consent Orders?
In most cases, the parties must prepare and agree to the contents of the following documents:
- Application to the Family Court for Consent Orders; and
- the draft Consent Orders which the parties seek the Family Court make.
Once the terms of the proposed Consent Orders have been agreed to they will need to be filed with the Family Court for review. If the Family Court is satisfied with the proposed Consent Orders it will make a formal order of the Court on the terms of the draft orders submitted.
Why do I need an Application and draft Consent Orders, what is the difference?
The Application for Consent Orders explains the parties’ financial and parenting circumstances to the Court. The draft Consent Orders state the agreement between the parties that the parties want to be converted to a formal order of the Court.
The contents of the Application for Consent Orders are very important to the Court as they will help the Court to assess whether the draft Consent Orders represent a fair division of the property and parenting responsibilities between the parties.
Can the Court refuse my Application for Consent Orders?
Yes. If the Court considers that the draft Consent Orders are unfair to either party, or are not in the best interests of any children of the relationship, the Court may decline to make the Consent Orders. This is why it is so important to fully and comprehensively detail the parties’ circumstances in the Application for Consent Orders. If the Court considers that there is anything missing in the Application, it may dismiss the request or seek further information.
Generally, the Court will assess whether to make the Consent Orders by reference to the factors in section 90SM of the Family Law Act 1975 (Cth).
There are various factors the Court will consider when deciding whether to make the orders sought, including the relative contributions (financial and non-financial) of the parties to the relationship, the future earning potential of each party and whether that potential has been hindered by the role of each party in the relationship. For example, a wife who primarily cared for the children and did not pursue a career might expect a greater share of the property pool than a husband who was the family’s primary earner.
How much time do I have to apply for Consent Orders?
If you were married, you have one year from the date of divorce to apply for Consent Orders.
If you were in a de-facto relationship, you have two years from when the relationship ended to apply.
If you are outside these time limits you will need leave (permission) from the Court to apply for Consent Orders. This is not always granted. To obtain leave you will need to show that there will be hardship to a party or child, or that a party will be unable to support themselves, if leave is not granted.
Are there any complicating factors or common mistakes?
Yes! There are many complicating factors to be mindful of and common mistakes to watch our for when applying for Consent Orders.
We address the most important of these in our next article, Family Law Consent Orders – Complicating Factors and Common Mistakes available here.
Family Law is a complex area of law and careful consideration needs to be made when preparing and applying for Consent Orders. We have extensive experience in Family Law particularly, how to properly prepare and apply for Consent Orders. If we can be of assistance in this process, please do not hesitate to contact us.