Consent orders are among the most effective and straightforward ways to finalise a divorce, especially for financial and custody arrangements. You don’t have to worry about court appearances, litigation, and further conflict with your spouse.
Consent orders are legal documents that ensure both parties are on the same page regarding certain matters during a divorce, saving you both money, time and emotional turmoil.
What Are Consent Orders?
In family law, consent orders are legal documents that have been approved by the Federal Circuit and Family Court of Australia (FCFCOA) and are used during the divorce process to organise property settlements, custody arrangements, and financial matters. It holds the same authority as a court-ordered judgment.
As the name implies, both parties must consent to the agreements laid out in the document, and the court reviews the terms and approves them if they are fair and align with the Family Law Act 1975.
If either party breaches the agreements made, the other party can go to court to enforce compliance.
Why Do Divorce Lawyers Recommend Consent Orders?
Consent orders make a written agreement legally binding, unlike other signed documents.
Here is why divorce lawyers, including Meredith Family Lawyers, recommend a consent order:
They Protect Both Parties
Once the consent order has been finalised, neither party can revisit financial issues without first meeting specific legal guidelines, giving both parties financial protection.
They Provide Peace of Mind
Having a clear, legally binding document that outlines the agreements gives you peace of mind. Both parties know that everything has been settled and can move on to the next stage of their lives without further conflict over financial and custody agreements.
A Faster Process than Going to Court
Consent orders are assessed and processed without having to attend a court hearing, saving you lots of valuable time.
More Affordable
Fighting in court over custody arrangements or property settlements can cost you thousands of dollars in legal fees. Consent orders, by comparison, are much cheaper.
Reduced Conflict
Consent orders encourage cooperation and civility between both parties, which is beneficial for everyone involved, especially children. It also ensures that more stable and fair custody arrangements are made.
More Control
Both parties have more control over the outcome of their divorce, rather than leaving big decisions to the judge and the courts.
Tax Benefits
Property transfers are exempt from stamp duty (a state-governed tax paid on large transactions).
What Do Consent Orders Cover?
Consent orders typically cover the following issues:
Financial and Property Settlement
Covers the fair division of property, assets and liabilities. It’s important to note that once the financial and property consent order has been finalised, it cannot be modified in any way, which is why it’s so crucial to double and triple-check that everything is correct.
- Transfer of property: The transfer of a property (often the family home) to one party.
- Superannuation/contribution splitting: Allows you to transfer up to 85% of your before-tax (concessional) super contributions to your spouse.
- Payment of lump sums: A one-time payment that is made in a lump sum.
- Division of bank accounts, shares and investments: All joint and individual assets need to be valued before they are divided based on financial and non-financial contributions and future needs.
- Allocation of debts and liabilities: The division of taxes, mortgages and loans between both parties.
- Sale of jointly owned assets: Typically achieved through mutual agreement, or by a buyout by one party.
Parenting Consent Orders
Parenting consent orders address the custody arrangements for children under 18. Unlike financial and property consent orders, a parenting consent order can be modified at any time, depending on changing circumstances and the best interests of the child/children.
A parenting consent order works out the following:
- Who the children live with most of the time
- How time is split between both parents
- Holiday and special occasion arrangements
- How decisions about education, health and religion are made
- Communication between children and the non-resident parent
How Do You Get a Consent Order?
The step-by-step process for getting a consent order includes the following steps:
Reaching an Agreement
Both parties, with their lawyers, have thoroughly read the consent order and agree on its terms.
Instruct Your Solicitor
You can have your family lawyer draft up the consent order documents, including the Application for Consent Orders and the Minute of Consent Orders (a document that outlines each party’s agreement).
Both Parties Sign the Document
Once the documents have been drafted, both parties and their lawyers are required to review and sign them.
Lodge the Application with the Court
The signed application needs to be filed with the Federal Circuit and Family Court of Australia (FCFCOA), along with the filing fee ($195 in NSW).
Court Assessment
A judicial registrar reviews the application. For financial and property consent orders, they assess whether the proposed settlement is just and fair.
In parenting consent orders, they ensure that custody arrangements are made in the children’s best interests.
Orders Are Made
If the application is approved by the registrar, the consent order is made. Each party will receive a sealed copy of the order.
What Are the Costs Associated with Consent Orders?
Here are the general costs associated with getting a consent order. Please note that these are only estimates, and the exact costs may differ, depending on the complexity of the matter and your family lawyer’s billing structure.
| Item | Estimated Cost Range |
| Court Filing Fee | $195 |
| Solicitor Fees (Straightforward Consent Orders) | $1,500 – $3,500 |
| Solicitor Fees (Complex Property Matters) | $3,500 – $8,000+ |
| Independent Financial Advice | $300-$800 |
| Superannuation Splitting Advice | $500-$1,500 |
Common Mistakes
These are common mistakes divorce lawyers often witness with consent orders:
Thinking a Written Agreement is Enough
A signed agreement between two parties is not legally binding under family law and cannot be enforced if one party changes their mind.
Not Getting Legal Advice
Some people draft their own consent orders. This is a mistake, as if the documents aren’t drawn up correctly, the application can be rejected by the court.
Missing the 12-Month Time Limit
Once a divorce order is finalised, a divorced couple has 12 months to file property and financial consent orders.
If you miss this deadline, you will need to apply for a leave of court to proceed (costing extra time and money).
Not Addressing All Assets and Liabilities
Some couples settle on the obvious assets (the house and cars), but forget about others, such as shares, property investments, cryptocurrency, business interests, joint debts, or accumulated frequent flyer points.
If an asset or liability is forgotten, it can be very difficult to amend the document.
Confusing Parenting Orders with Child Support
Parenting orders primarily address decisions and time, but they do not address child support payments (which are a separate matter handled by Services Australia).
Leaving Superannuation Out of the Settlement
Superannuation is one of the most significant assets in a marriage, yet it is often overlooked during property settlement.
Consent orders usually include a superannuation splitting order, which must be carefully drafted and served on the relevant super fund.
How Does the Court Decide to Approve Consent Orders?
A judicial registrar needs to first review the proposed terms before the court can approve them.
The following factors are considered:
For Property and Financial Consent Orders
A property and financial consent order needs to lay out a just and fair division. Each party’s financial and non-financial contributions and future needs under the Family Law Act 1975 are considered.
For Parenting Consent Orders
Are the proposed arrangements in the best interests of the children? This is one of the most important considerations in all children’s matters under Australian family law.
The court may request more in-depth information or suggest amendments if it is not satisfied with the application. This is why it’s so important to have an experienced family lawyer at your side.
Is a Consent Order Always the Right Option?
Consent orders work well when both parties are in agreement and willing to negotiate without any conflict.
They may not be effective when:
- There is a power balance between both parties.
- One party has not been honest or disclosed their financial situation.
- One party is being pressured into accepting unfair terms.
- There are concerns about family violence or coercive control.
- The proposed terms are unfair to one party or the children.
If any of these situations arise, your family lawyer may recommend court proceedings or mediation with an experienced third party.
Consent Orders vs. Binding Financial Agreements
Both consent orders and binding financial agreements (BFAs) can finalise financial matters; however, they both have key differences:
| Feature | Consent Orders | Binding Financial Agreements |
|---|---|---|
| Court approval required? | Yes | No |
| Both parties need to agree? | Yes | Yes |
| Legally enforceable? | Yes | Yes |
| Can it be set aside by the court? | In limited circumstances | In limited circumstances |
| Independent legal advice required for each party? | No (it is recommended) | Yes (mandatory) |
| Does it cover parenting matters? | Yes | No |
| Filing fee payable? | Yes (confirm final fee with the Federal Circuit and Family Court) | No |
| Level of court oversight | High | Not as high |
In most cases, consent orders provide greater security because the court reviews the terms before they are approved.
Binding financial agreements (BFAs) are more flexible but can also be challenged if the proper procedures are not followed.
At Meredith Family Lawyers, we have years of experience drafting consent orders and know what the court expects and how to draft documents that will be approved. We strive to protect our clients’ interests and always prioritise the best outcome for you.
Contact us at 1300 537 306 to find out more about consent orders and our other services.
FAQs
How Long Do Consent Orders Last?
Financial and property consent orders are final, while parenting consent orders stay in place until changed by the court or the children turn 18.
Do Both Parties Need a Lawyer to Apply for Consent Orders?
Not legally. Either party is able to apply for a consent order without legal representation.
However, given the binding nature of consent orders, it is strongly recommended that both parties obtain legal advice before signing anything.
Can Consent Orders Be Overturned?
Yes, but only in very limited circumstances. A property and financial consent order may be overturned by the courts under section 79A of the Family Law Act 1975 if there has been fraud, a failure to disclose assets, or a significant change in circumstances that makes it more difficult to comply with the order.
That is why it’s so important to get everything checked by a lawyer before the consent order is finalised.
What Happens if One Party Breaches a Consent Order?
If one party breaches a consent order, the other party can apply to the court for enforcement. Depending on the consent order, remedies can include fines, compensation orders and community service orders.
Parenting orders are handled under a separate framework (known as contravention proceedings).
Can De Facto and Same-Sex Couples Apply for Consent Orders?
Yes, both de facto and same-sex couples can apply for consent orders to finalise parenting, financial and property decisions.
How Long Do Consent Orders Take to Finalise?
Once a consent order has been submitted, it takes about 4 to 6 weeks to be approved by the court.
