Consent Order & Financial Matters
After separation, parties may have reached an amicable arrangement about the division of assets or the payment of child support or spousal maintenance without consulting lawyers.
However, any arrangement is not final or binding until you formalise the arrangement by obtaining consent orders or entering a binding financial agreement.Parties may be able to avoid the payment of stamp duty by formalising their agreement before transfer of the assets.
Parties may apply to the Family Courts for consent orders, in situations where you have reached an agreement in relation to financial matters.
In the majority of cases, parties are able to reach an agreement in relation to their financial settlement. This agreement may encompass a property settlement, spousal maintenance, child support and superannuation splitting orders. Again, in most cases, parties are then able to complete and file in the Family Court an application for consent orders to obtain final financial orders.
In our experience most parties are unable to draft the consent orders application properly, even though the kit and examples are available online.
As the consent orders will bind both parties, it is important and highly recommended that parties have them prepared or at least reviewed by an experienced family law practitioner.
In most cases consent orders can be prepared in under 7 days and then filed with the family courts.
The filing of consent orders in the family courts does not mean that the parties must go to court, which is a common misunderstanding. The family courts process the applications for consent orders in chambers, and there is generally no requirement for the parties to ever have to personally attend the courts.
After the date of filing the family courts then take between 4 to 6 weeks to process an application for consent orders, with there being an ability to seek an urgent processing in limited circumstances.
Obtaining consent orders should be regarded as part and parcel of doing a final property settlement.
Parties generally should not engage in the transfer or sale of significant assets without consent orders having been made.
Parties do not have to wait for any particular period of time before applying for consent orders. In theory it is possible to obtain consent orders in relation to financial matters at any time. This is unlike applying for a divorce which of itself requires parties to wait a minimum of 12 months after the date of separation before they can lodge their application for a divorce.
The matters that may be dealt with in a consent order application are also important matters that you should ensure you get the proper legal advice about.
1. Once final property consent orders have been made, parties cannot change their mind except in limited circumstances. Circumstances in which consent orders can be varied or set aside are as follows:There has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
2. In the circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out.
3. A person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order.
4. In the circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the for the order.
5. A proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.
An application for consent orders is submitted to the Family Courts in the prescribed format and must also include an attached minute of consent orders setting out your arrangement.
ABA Lawyers can assist you to draft your Application for Consent Orders.
If you and your former partner have reached an agreement, telephone us to discuss preparation of an Application for Consent Orders.
We offer lump sum and reduced fee packages to draft consent order applications subject to terms and conditions.