Separation is a difficult situation on its own, let alone the added stress of dealing with consent orders on family law matters.
Following a separation, if both parties reach agreement on parenting, financial or property arrangements, they can formalise those arrangements and make them legally binding by applying for consent orders from the Family Court of Australia. Consent orders may also be used to either discharge or vary other existing family law orders.
The court must be satisfied that the agreement in place is just and equitable, and also in the best interests of any child/ren, before it may be formalised as a consent order.
It should be noted that consent orders are different from financial agreements. Some primary differences include:
- Consent orders can only be used after the end of a relationship, whereas financial agreements may be entered into at any time.
- Consent orders may deal with parenting orders, whereas financial agreements may not.
- Unlike financial agreements, which are private contracts between parties, consent orders require the Family Court Registrar’s approval.
Financial agreements may also be overturned or disputed in certain circumstances. Following the filing of consent orders in relation to the care of children, the proposed terms are assessed to ensure that the best interests of the child are prioritised prior to the order being formalised.
Obtaining consent orders
The assistance of a legal professional is advised when commencing the preparation of the documentation, even though it is also possible to directly apply to the Family Court. An experienced family lawyer has the relevant knowledge of the process but also the ability to impartially assess individual situations, which can be a difficult thing to do when emotions are involved. Without the direction of a legal professional, you run the risk of the court rejecting the application for consent orders, as well as potentially missing important aspects of the proposed parenting/property arrangements.
If parties want to seek orders from the court, there are a few rules in place. An application must be filed any time within 12 months of a divorce, or two years if the relationship was de facto. In the instance that an application is being filed beyond this time frame, the court’s consent must be provided and leave of the court sought in order to file the application.
In regard to the division of property, a legal expert will ask the parties about the initial contributions made throughout the relationship, a list of the assets, liabilities and any other factors that may be relevant. By providing this information, a legal expert can provide advice regarding what you may receive during a settlement, as well as clarify your overall financial position.
A decision on the division of property will be influenced by factors such as the financial (and non-financial) contributions made throughout the relationship, whether there are any children in the relationship, income disparity between the parties as well as other facts found in the Family Law Act 1975 (Cth).
It is therefore advised to seek legal assistance once an agreement has been reached, to assist with the formalisation process of the agreement. A legal expert can help you to prepare and file the documents in court, which then become the orders with which both parties must comply regarding both children and property.