Updated: 2 days ago
When a relationship ends, one of the more challenging tasks is deciding how to divide assets. Generally, a former couple has three main options: Binding Financial Agreements (BFAs), Disputes in Court, or Consent Orders.
Consent Orders are a court order where both parties agree to settle their dispute outside the court system, and they're 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 experienced 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 fair and in the best interests of the parties (and any minor children, where relevant), both parties can move forward with confidence, knowing the settlement is binding.
In This Article:
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 the Federal Circuit and Family Court of Australia approves Consent Orders, 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 married couples. In rare cases, the agreement may also include third parties, particularly in more complex family arrangements or multi-partner situations.
The key requirement is that the Court must find the agreement's terms to be ‘just and equitable’ and be satisfied that the outcome is fair and reasonable for both parties, given 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, click here to read our article.
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 include all business and investment assets in the orders to avoid later complications.
We always recommend that, even if you and your ex-spouse have reached an agreement in principle, you engage a reputable lawyer to discuss your circumstances and prepare the relevant documents.
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 the Court is satisfied, the Consent Orders 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.
While you can prepare and submit an Application for Consent Orders without legal advice, we strongly suggest you obtain proper, 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 and help both parties move forward with confidence.
Separation is difficult, but Consent Orders offer a straightforward, cost-effective way to finalise your financial matters and avoid the expense and stress of litigation.
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 are those of the author and may not necessarily represent the views and/or opinions of RHC Solicitors.
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