What is a consent order and why are they important in a separation?

When couples separate, sorting out property and parenting arrangements can be complex. Having a legally binding agreement is often the best way to move forward with certainty. Consent order arrangements provide a formal way to document your agreements after separation, giving you peace of mind that your arrangements are legally enforceable.

Key Takeaways

• Consent orders are court-approved agreements that become legally binding and enforceable
• They can cover property division, parenting arrangements, and financial matters
• Unlike informal agreements, consent orders provide certainty and legal protection
• You can apply for consent orders without attending court in most cases
• Independent legal advice is recommended before finalising consent orders

What is a consent order?

A consent order is a legally binding document approved by the Family Court of Australia that formalises agreements between separating couples. These orders have the same legal effect as if they were made by a judge after a court hearing, but they're created by mutual agreement rather than through litigation.

Under the Family Law Act, consent orders can address various aspects of separation, including:

• Property and asset division
• Parenting arrangements and responsibilities
• Financial support and maintenance
• Superannuation splitting

The key distinction between consent orders and other arrangements like parenting plans or binding financial agreements is that consent orders receive court approval. This approval process means they're legally enforceable, with serious consequences for non-compliance.

The importance of consent orders in separation

Informal agreements between separating parties might seem sufficient at first, but they lack legal enforceability. Without a formal consent order, either party could change their mind or fail to follow through on promises made.

Consent orders provide certainty by:

"Properly drafted consent orders give separating couples clarity about their rights and responsibilities, while providing a clear framework for moving forward after separation." - Testart Family Lawyers

They also reduce the likelihood of future disputes by clearly documenting what was agreed. This is particularly valuable when emotions might otherwise cloud judgement or when relationships between ex-partners deteriorate over time.

For children, consent orders provide stability through clear, enforceable parenting arrangements. For financial matters, they offer protection by formally ending financial ties between parties.

Property and financial consent orders

Financial consent orders can cover the full spectrum of your property pool, including:

Real estate assets, vehicles, cash, investments, business interests, superannuation, and debts can all be addressed. These orders clearly outline how assets will be divided, transferred, sold, or retained.

Spousal maintenance provisions can be included where appropriate, establishing ongoing financial support arrangements between former partners based on needs and capacity to pay.

Superannuation splitting is a complex but essential element of many property settlements in Australia. Consent orders can include specific provisions for splitting superannuation interests, with careful attention to tax implications.

Well-drafted orders use precise language to avoid ambiguity. For example, instead of "The husband will transfer his interest in the family home to the wife," a better clause would specify "The husband will transfer his right, title and interest in the property at [specific address] to the wife within 60 days of this order."

Parenting consent orders

Parenting consent orders establish legally binding arrangements for children, covering:

They determine who has parental responsibility for major decisions about children's welfare, education, health, and religious upbringing. They can specify whether this responsibility is shared or allocated to one parent.

Living arrangements are clearly defined, including regular care schedules, holiday arrangements, special occasions, and communication protocols when children are with the other parent.

Effective parenting orders avoid vague language and set out practical arrangements with specific times, locations, and responsibilities. They anticipate future needs by including mechanisms for resolving disputes and provisions for changing circumstances as children grow older.

The application process

Applying for consent orders involves several key steps:

1. Prepare the Application for Consent Orders form (Form 11) and draft consent orders
2. Complete a Financial Statement if the orders involve property or financial matters
3. Both parties sign the application and orders
4. File the documents with the Federal Circuit and Family Court of Australia with the filing fee
5. Wait for court assessment and approval

The court reviews applications to ensure they're just and equitable for property matters, and in children's best interests for parenting matters. If satisfied, a registrar will approve the orders without requiring a court appearance.

The process typically takes 1-3 months from filing to approval, depending on court workloads and whether additional information is requested.

Enforcing and changing consent orders

If a party fails to comply with consent orders, the other can file contravention proceedings with the court. Penalties for breaches can include compensation, make-up time with children, fines, or even imprisonment for serious or repeated violations.

Circumstances change, and sometimes consent orders need modification. This can happen by:

When both parties agree to changes, they can file new consent orders to replace the original ones. When agreement isn't possible, an application to vary the orders must be filed, demonstrating significant changes in circumstances since the original orders were made.

Common mistakes to avoid

When preparing consent orders, watch out for these pitfalls:

Incomplete asset disclosure can invalidate orders or lead to future claims. All assets, liabilities and superannuation interests must be properly identified and valued.

Ambiguous wording creates enforcement challenges. Specific dates, times, places, and responsibilities eliminate confusion and disputes.

Unrealistic arrangements that don't account for practical realities often lead to non-compliance and further conflict.

Rushing the process without proper legal advice can result in unfair outcomes or agreements that don't reflect legal entitlements.

Conclusion

Consent orders provide a structured, legally binding framework for separating couples to resolve property and parenting matters. While the process might seem complex, the certainty and protection they provide make them worth considering.

Whether you're just beginning separation discussions or have already reached agreement on key issues, seeking professional guidance can make a significant difference to the outcome. Testart Family Lawyers can help you navigate the consent order process to achieve arrangements that protect your interests and provide a clear path forward after separation.

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