What are Consent Orders?
Consent orders are used to finalise property and parenting matters. If both parties have reached agreement about parenting and/or financial/property arrangements and want to formalise the agreement to make it legally binding, you can apply for consent orders. The orders can also be used to vary or discharge existing family law orders.
Consent orders have the same force and effect as if you had gone to court and the court official, such as a judge, made the decision after a hearing. If you break a court order you are breaking the law and the court could give you a penalty.
What is the Process?
Obtaining a consent order in Australia involves a structured legal process. It’s crucial to follow each step carefully, as errors or omissions can lead to delays or rejection of the application.
1. Negotiate agreements
Before you can apply for orders, all parties must agree on matters such as property division, finances and if applicable parenting arrangements.
2. Obtain Legal Advice
Although obtaining legal advice is not mandatory is it strongly recommended. Obtaining advice from a family lawyer can assist you in understanding your rights, ensure the agreement is fair and confirm that the legal criteria for Consent orders are met.
3. Drafting the Application
Once the Parties have reached an agreement, the terms must be detailed in a formal document. We would prepare an Application for Consent Orders and Minutes of Consent Orders which would then be executed by the parties and filed with the Court. The Court requires considerable details in the Application for Consent Orders as to the current assets and liabilities of each party, and details of property sold or acquired by them since separation.
4. Review of the Application
Before filing the Application and Minutes of Consent is it crucial to review the Application and Minutes of Consent to ensure that all information is correct and that the necessary disclosures have been made. If the Application or Minutes of Consent are filed and information is missing or incorrect the process for obtaining the Consent orders can be delayed.
5. Filing the Application with the Family Court
Once the Application for Consent orders and Minutes of Consent have been finalised we will filed the completed Application and Minutes with the Family Court though the Commonwealth Courts Portal. A filing fee is required for the Application. In financial hardship, you can apply for a fee reduction or exemption.
6. Court Evaluation
A Registrar or Judge will review your Application to ensure the orders sought are in the children’s best interests (for parenting matters) and that the agreement is just and equitable (for financial matters). The Court may ask for more information if there are any areas of concern or if parts of your application need clarification. If the Court is satisfied that the proposed Consent Orders meet all legal thresholds, they will approve them. You will receive sealed orders, making them legally binding.
Benefits of Consent orders
Some benefits include:
- Finalising, as far as practicable, your financial relationship with your former spouse;
- Exemption from payment of stamp duty and transfer lodgement fees on the transfer of any real property that is the subject of an Order; and
- Capital Gains Tax rollover relief.
Time frame
The time it takes to obtain the orders can depend on several factors, including:
- The Complexity of the Case
- The workload of the Court
- Weather additional information or documentation is required from the parties
However generally consent orders can be obtained within 6-8 weeks of the application being filed with the Court.
If you require assistance or advice, contact Preston Law today.Â