Consent Orders: A Practical Solution For Asset Division After Separation
- RHC Solicitors
- 12 minutes ago
- 4 min read
When a relationship ends, one of the more challenging tasks is deciding how to divide assets. Generally, there are three main paths a former couple can take: Binding Financial Agreements (BFAs), Disputes in Court, or Consent Orders.
Consent Orders are a specific court order where both parties have agreed to settle their dispute outside of the court system, and are are often the fastest and most efficient way to finalise asset division and move forward.
If you and your former partner can agree on how to split your assets, an experience family lawyer can prepare the Consent Orders and submit them to the Court. Once the judge has reviewed the terms, and is satisfied they are both fair and in the best interest of the parties (and any minor children where relevant), both parties can move on with confidence, knowing the settlement is binding.
What Are Consent Orders?
Court orders are the way a decision or judgment of judicial officers (e.g. a judge or magistrate) is described
Consent Orders are a specific type of court order that formalise the terms of an agreement between separated spouses or de-facto couples, and will generally include parenting and/or financial/property matters
Although Consent Orders are approved by the Federal Circuit and Family Court of Australia, you don’t need to go through the lengthy litigation process. They have the same legal standing as orders made after a contested hearing, allowing you to resolve financial matters without the stress and cost of a trial.
Who Can Enter Into Consent Orders?
Consent Orders are available to both separated de-facto couples and those who were married. In rare cases, third parties may also be included in the agreement, particularly in more complex family arrangements or multi-partner situations.
The key requirement is that the Court must find the terms of the agreement to be ‘just and equitable’, must be satisfied that the outcome is fair and reasonable for both parties based on their circumstances.
How Does The Court Evaluate Consent Orders?
When reviewing Consent Orders, the Court follows a specific process to determine if the settlement is just and equitable. This will include:
Assessing the net value of the assets
Considering each party’s contributions to the relationship, both financial and non-financial
Reviewing future needs, such as earning capacity, health, age, and childcare responsibilities
If the Court believes the settlement unfairly favours one party, it may reject the Consent Orders. In such cases, the parties can renegotiate or formalise the agreement through a Binding Financial Agreement. To learn more about Binding Financial Agreements, read our article by clicking here.
What Can Consent Orders Cover?
Consent Orders can address various parenting and/or financial matters, including:
Arrangements for the living situation of any minor children (e.g. which parent they live with, how often they see the other parent)
Transfer of ownership of real estate, personal property (vehicles, boats, furniture), and cash payments between parties
Superannuation splitting, whether in public or self-managed superannuation funds
Transfer or control of business assets and investments, including resignations from directorships or trusts, and share transfers
Allocation of responsibility for liabilities and ensuring appropriate indemnities
For business owners, it’s important to ensure all business and investment assets are included in the orders to avoid complications later.
We always recommend, even where you and your ex-spouse may have reached an agreement in principle, that you engage a reputable lawyer to discuss your circumstances and prepare the relevant documents accordingly.
How Do You Obtain Consent Orders?
There are two main scenarios when Consent Orders are generally sought:
Without Court Proceedings:
Both parties file an Application for Consent Orders, outlining their financial positions, and a Consent Minute of Order, detailing the agreed terms. Once the Court seals the agreement, the Consent Orders become legally binding.
During Court Proceedings:
If a settlement is reached while Court proceedings are underway, only the Consent Minute of Order is required, as financial disclosure has already occurred during the trial process
Once a Court is satisfied with the Consent Order, they are finalised and sealed.
In either case, sealed Consent Orders are necessary to facilitate asset transfers, including ensuring stamp duty exemptions for property transfers between parties.
Whilst you can choose to prepare and submit an Application for Consent Orders without obtaining legal advice, we strongly suggest you obtain proper and adequate advice from a qualified and reputable lawyer.
Why Choose Consent Orders?
Once approved by the Court, Consent Orders provide finality, making it difficult to overturn the settlement unless there are exceptional circumstances such as:
Duress or coercion
Lack of full financial disclosure
Fraudulent activity
Impracticality in enforcing the orders
Significant changes related to the care of children
By documenting your family law settlement through Consent Orders, you can ensure a smooth transition, enabling both parties to move forward with confidence.
Separation is difficult, but Consent Orders offer a straightforward and cost-effective way to finalise your financial matters, avoiding the expense and stress of litigation.
At RHC Solicitors, our dedicated family lawyers are highly experienced in preparing Consent Ordersm and ensure that they represent the best interests of our clients. If you’re ready to take the next step and put the separation process behind you, reach out to us for a no-obligation 30 minute consultation to discover how we can help.
Disclaimer: This publication is not intended to be comprehensive, nor does it constitute legal advice. We are unable to ensure the information is current and there is no guarantee in relation to accuracy. You should seek legal or other professional advice before acting or relying on any of the content of this publication. The views and/or opinions expressed in this publication is that of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
RHC Solicitors ©
