What Are Consent Orders and How Do You Get Them in Australia?

What Are Consent Orders in Family Law?

Consent orders are court orders that formalise an agreement between spouses or de facto partners about property division, spousal maintenance, or child support. Unlike a binding financial agreement, which is a private contract, consent orders require court approval. However, because both parties agree on the terms, the court approval process is usually straightforward and quicker than contested proceedings. Understanding what consent orders are and how to obtain them can help you finalise your property settlement with certainty and court backing. consent orders versus BFAs

Why Court Approval Matters

You might wonder why you'd go through court if both parties already agree. The answer lies in finality and enforceability. A court-approved consent order carries the full weight of judicial authority. This makes it much harder to challenge later and easier to enforce if someone doesn't comply. This added security is valuable, especially in cases involving substantial assets or where there's any concern about future compliance.

How Do Consent Orders Differ from Binding Financial Agreements?

Both consent orders and binding financial agreements finalise property settlements, but they have important differences. A binding financial agreement is a private contract between the parties that becomes binding once signed with independent legal advice. Consent orders, by contrast, require court approval before they're enforceable.

The advantage of consent orders is that once the court approves them, they have the full force of court orders. This can be valuable if you want to be certain the order is enforceable or if you anticipate potential issues with compliance. With a BFA, there's a small risk that courts might set it aside in certain circumstances.

Consent orders are also generally easier to enforce. If someone breaches a BFA, you might need to prove it's valid first before seeking remedies. With a court order, enforcement is more straightforward because the court has already approved the arrangement.

Cost and Timeline Comparison

Consent orders typically involve court filing fees and may take 2 to 6 months to finalise. BFAs are usually faster and can sometimes be cheaper because they don't involve court processes. However, the choice between them depends on your circumstances and priorities—cost isn't the only consideration.

What Can Consent Orders Cover?

Consent orders can cover a broad range of family law matters. Most commonly, they deal with property settlement, dividing assets and liabilities between the parties. They can also cover spousal maintenance (ongoing financial support for an ex-partner), child support, or parenting arrangements.

In property settlement cases, consent orders typically specify which party receives which assets, how liabilities are divided, and any adjustments for contributions or future needs. They provide a comprehensive framework for how the parties' financial affairs are arranged after separation. obtaining consent orders via mediation

Examples of What Consent Orders Specify

A consent order might specify, for example, that one party receives the family home and the other receives cash or superannuation to balance the division. It might provide that one party will retain their business or investment portfolio while the other receives other assets. Spousal maintenance might be included if one party's earning capacity is lower. The flexibility of consent orders means they can accommodate almost any agreed arrangement that the parties think is fair.

The Consent Orders Application Process

To get consent orders, you and your partner must first reach agreement on the terms of your settlement. This often involves negotiation, possibly with the help of lawyers or mediators. Once you've agreed on the broad terms, you can apply to the Family Court or Federal Circuit Court (depending on your circumstances) for the orders.

The application typically involves filing an agreed statement of facts with the court, along with the proposed consent orders. Both parties sign the application, confirming they agree to the proposed terms and that they want the court to make the orders.

You'll usually be asked to provide evidence supporting why the proposed orders are just and equitable. This might include financial statements, valuations of assets, and a summary of how the settlement was calculated.

Documentation You'll Need

Prepare comprehensive financial disclosure including details of all assets, liabilities, income, and expenses. Have valuations for significant assets like real estate or businesses. Provide a written agreement signed by both parties setting out the settlement terms. Include evidence of the basis for the settlement—for example, if one party sacrificed career development during the relationship, this should be documented. The more complete your documentation, the smoother the court approval process.

What Does the Court Check?

Before approving consent orders, the court must be satisfied that the proposed orders are "just and equitable" under the Family Law Act. This is the court's key test for whether property settlement orders are fair.

The court generally considers whether the settlement is reasonable given the parties' circumstances, contributions, future needs, and other relevant factors. The court typically applies a light-touch approach to agreed orders, trusting that the parties have negotiated a fair outcome. disclosure in consent order applications

However, the court won't simply rubber-stamp any agreement. If the proposed orders appear manifestly unjust or one party seems to have been disadvantaged, the court may ask questions or decline to approve the orders.

Understanding the "Just and Equitable" Test

The court looks at whether the division reflects contributions made during the relationship (both financial and non-financial), the future needs of each party (including age, health, earning capacity, and responsibilities for children), and any other matters the Family Law Act specifies. Understanding this framework can help you assess whether your proposed agreement is likely to be approved.

Timeline for Consent Orders

The timeline for getting consent orders varies depending on the court's workload and how complex your application is. Generally, straightforward property settlement applications can be approved within 2 to 6 months. More complex cases involving multiple assets, business valuations, or disputes about contributions may take longer.

The application process itself is quicker than contested proceedings because the court doesn't need to hear evidence or determine disputes. Once you've filed your application with the agreed statement of facts and the proposed orders, the court usually reviews the documents and either approves them or asks for clarification.

Expediting Your Application

Clear, complete documentation submitted upfront reduces delays. Work with your lawyer to ensure your application is thorough and addresses the court's key concerns about whether the settlement is just and equitable. Courts are generally cooperative when both parties are agreed and the paperwork is in order.

Costs of Consent Orders

The cost of obtaining consent orders depends on how straightforward your case is and whether you use lawyers. If you and your partner can negotiate terms without extensive dispute, the process is usually cheaper than contested court proceedings.

You'll typically need to pay court filing fees, which vary depending on the court and the type of order sought. You may also have lawyers' costs if you want professional help drafting the application and negotiating terms with your partner. court approval timelines

Many people find that the cost of obtaining consent orders is offset by avoiding the much higher costs of contested litigation. If you can reach agreement, you'll generally save significantly on legal fees and court time.

Planning Your Budget

Court filing fees are generally between $500 and $1,500 depending on the matter. If you use lawyers, expect additional costs for drafting and negotiations. However, these costs are typically far less than contested litigation, which can cost tens of thousands of dollars. Consider using our property settlement calculator to estimate how assets might be divided, which can help you assess whether an agreement is worth pursuing and what terms might be reasonable.

Common Mistakes When Seeking Consent Orders

One common mistake is not clearly setting out all relevant facts in the agreed statement. If the court doesn't have enough information, it may ask questions or delay approval. Make sure your application fully explains your circumstances, contributions, and why the proposed orders are just and equitable.

Another mistake is rushing the process without ensuring both parties truly agree. If either party has reservations or hasn't received proper legal advice, the consent order may be challenged later. Take time to ensure the agreement is solid before applying to court.

Some parties also make the mistake of not disclosing all relevant assets and liabilities. If undisclosed assets emerge later, the consent order may be vulnerable to being set aside. Full disclosure is essential for a robust consent order.

Avoiding Future Challenges

Ensure both parties have genuinely agreed to the terms, ideally with independent legal advice. Document your negotiations and settlement discussions. Make full and frank disclosure of all assets and liabilities. Don't hide information or hope the other party won't find out—if undisclosed assets surface later, the court may set the order aside. Transparency builds a consent order that will stand the test of time.

Getting Support for Your Settlement

If you're working towards consent orders, resources like our settlement guide and demo calculators can help you understand how assets are typically divided and plan your negotiations. Speaking with a family lawyer remains the best way to ensure your agreement is solid.

Key Takeaways

• Consent orders are court-approved agreements about property division, maintenance, or child support
• Unlike binding financial agreements, consent orders require court approval before they're enforceable
• The court must be satisfied that consent orders are "just and equitable" before approving them
• The application process typically takes 2 to 6 months for straightforward property settlement cases
• Consent orders are generally cheaper and faster than contested court proceedings
• Full disclosure of assets and clear agreement on terms are essential to avoid challenges later
• Consider using a family lawyer to help draft and file your consent orders application

Disclaimer: This article provides general information only and does not constitute legal advice. Every situation is different. For advice specific to your circumstances, consult a qualified family lawyer. Separately.ai provides property settlement estimates based on general family law principles and should not be relied upon as legal advice.