Family Law Consent Orders
When a married or de facto couple separates, arrangements need to be made for the division of their assets and care of any children of the relationship. Some couples come to a private agreement and never formalise the terms in writing. This informal approach works well for some families, but can also lead to disagreements and misunderstandings down the track. If the parties are able to reach an agreement privately, it is advisable for this agreement to be formalised by a family law Consent Order. Consent Orders are written agreements filed with the court, which once approved, will be legally enforceable Court Orders. The law that governs these agreements is the Family Law Act 1975.
A Family law Consent Order can cover both property and parenting arrangements, or these matters can be submitted in separate applications. Parenting orders are typically arrangements for custody of a child, details of the specific times that a child will spend with each parent, and provisions for communication between a non-custodial parent and child. Property consent orders are commonly court orders for the division of assets such as superannuation accounts, the proceeds from the sale of the matrimonial home, and may include provision for spousal maintenance.
Applying For Family Law Consent Orders
It is a relatively straightforward process to obtain a family law consent order. Certainly, these orders are generally considered to be quicker and less costly than other methods of dispute resolution. In the case of a consent order, neither party is obliged to appear in court.
The Process for Family Law Consent Orders
There are three stages to the process: negotiation, drafting, and filing.
The negotiation phase is when the parties hold discussions and attempt to come to an agreement. This discussion is conducted privately, between either the parties themselves or their legal representatives. It is important that each spouse is aware of their entitlements before this stage begins.
During the drafting stage, the documents will be prepared ready for filing with the court. The required documents are:
- An Application for a Consent Order, which has the details of the parties and their children, a statement of the liabilities, assets, and financial resources of the couple.
- The Consent Orders, with the terms of the agreement of the parties, and the process through which the agreement will be implemented, including time frames. These orders must be drafted in a way that the court can implement, so unless a person is familiar with the process they should consult a solicitor.
- Annexure to Proposed Family Law Consent Orders, which is needed if someone is applying for parenting orders, which states whether there is a risk of abuse, neglect, or family violence in relation to any child.
- Notice to Third Parties, which is required if the couple is applying for property orders. On occasion, notice has to be provided before filing. For example, if a couple is seeking to split a superannuation benefit, a letter of compliance must be solicited from the Trustee of the Superannuation fund.
The application for a family law consent order and the supporting documents is lodged with the court. The original and three copies of each document must be filed.
Benefits of Family Law Consent Orders
There are distinct benefits to using a family law consent order to formalise an agreement. An order is final and difficult to alter once issued, thereby offering both parties certainty. The terms of the agreement are also enforceable by the court. This means that the court has the power to take certain steps, such as executing a document, even in circumstances where one parent has refused to sign the document. The court can also make further orders to ensure compliance with the first order. In simple terms, the court is given the power to enforce the original agreement, which keeps everyone on track. There are also financial benefits to entering into a Family Law Consent Order, as the transfer of any property as part of such an order is exempt from stamp duty fees when it is transferred to a child or party of the relationship.
Restrictions on Family Law Consent Orders
An application for a parenting consent order can be made at any time, but time limits do apply to filing for a consent order for property settlement. For married couples, this time limit starts from the grant of divorce and must be filed within 12 months. For de-facto couples, the time limit begins upon the breakdown of the relationship, and the parties have two years to file consent orders for property settlement. If someone needs to make an application outside that time frame, they must ask permission from the court.
The current filing fee for applying for a family law consent order can be found here. An exemption from this fee is available under certain circumstances, such as for holders of government concession cards, recipients of Legal Aid or social security payments, persons under the age of eighteen, and anyone who can prove that they are suffering from financial hardship.
The family law experts at Armstrong Legal can help you to apply for a consent order and advise you on negotiating a property settlement and custody matters. Please call 1300 038 223 or send us an email to make an appointment.