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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (state and federal industrial tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Property Orders - Consent Orders & Judge Made Orders


Following separation, it is important for parties to formalise an agreement in respect to property matters. In many cases, you and your spouse may be able to reach an agreement without the need for costly and emotional litigation at court. However, in these circumstances, you should still consider filing consent orders with the court in order to formalise the agreement you have reached.

What Are Consent Orders?

Consent orders are court orders which you and your ex-spouse enter into by agreement following separation. The consent orders can deal with property matters, superannuation and parenting matters. Consent orders are filed with the Family Court in conjunction with the application for consent orders. The application sets out what assets you and your spouse each hold, together or separately at the time of application, and what assets you will each individually own following the implementation of your proposed agreement. This helps the court in determining whether your agreement is fair in all the circumstances.

If the registrar of the court assesses the agreement as being fair, they will make orders in accordance with the agreement you and your ex-spouse have reached. The effect of the court’s seal on the agreement is that such agreement is now binding upon you and your spouse in the same way orders made by a judge would have been binding on both parties. The effect is that the consent orders are enforceable as orders against both parties.

Whilst it is not legally required that you and your ex-spouse obtain legal advice to formalise your agreement into consent orders, we strongly recommend that you do. This is because the agreement needs to be drafted in such a way as to ensure enforceability. There are also notice requirements in respect to any superannuation splitting order which will need to be adhered to.

What If I Can’t Reach An Agreement?

If you cannot reach an agreement with your ex-spouse, you may need to start proceedings with the court. In these circumstances, you and your ex-spouse will need to submit applications to the court setting out what it is you each seek by way of property matters and/or parenting matters. The court will then be required to make a determination in respect to what is fair in all the circumstances. The effect of final orders is the same as consent orders. That is, they are both binding upon you and your spouse.

Can I Formalise Our Agreement Without The Court?

In some circumstances, you may wish to consider entering into a financial agreement with your ex-spouse. In these circumstances, you and your spouse are agreeing not to submit your agreement to the court for examination. There is no requirement that your agreement be fair. Additionally, you and your spouse can enter into a financial agreement before marriage, during marriage or after marriage. In respect to de facto relationships, a financial agreement can be entered into during the de-facto relationship or after separation. Financial Agreements can only be used in respect to property matters and not parenting matters.

In order for a financial agreement to be binding, you and your ex-spouse will need to obtain independent legal advice. There are also a host of additional grounds upon which your financial agreement could be set aside, including, for example, a material change in circumstance in respect to a child of the relationship.

For comprehensive advice about the best way to formalise your agreement with your ex-spouse, please contact Armstrong Legal to discuss your matter with one of our Victorian solicitors

 

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