FAMILY LAW - CONSENT ORDERS
What are Consent Orders?
If you have recently separated from your spouse or de facto partner, and have reached an agreement about arrangements for your children and property, consent orders are the best way to document your agreement. Consent orders are essentially an agreement that has been stamped and sealed by the court, making it legally binding. They can refer to both parenting and property settlement matters, and if breached or disregarded, they can be enforced by the court.
Stamp Duty and Tax Benefits
If your consent orders involve property or financial matters, there are several tax benefits that come along with it. For instance, if an interest in a property is to be transferred to you from your former spouse, you will not have to pay stamp duty on the transfer if it is documented in a consent order. This can save you a considerable amount of money, much more than the cost of paying a lawyer to prepare the consent orders. Additionally, consent orders may exempt you from having to pay capital gains tax on property transfers or from paying stamp duty on share transfers or to remove a party from a trust when transferring shares in a company.
How to Obtain Consent Orders
To obtain consent orders, you need to apply to the Family Court and complete the “Application for Consent Orders” form. The form is a lengthy document that sets out all the details of the marriage, and you must attach another document containing your proposed orders or the terms you and your former partner have agreed to. The Family Court provides specific templates accessible from its website, and there is quite a lot of information and detail that the Court requires. There is also a filing fee for filing an application for consent orders, which is much less than the fee charged for a divorce application.
Can I Do This Myself?
You can make the application without a lawyer, but be aware that there is quite a lot of information to gather and documentation to consider and fill out. It is recommended that you obtain independent legal advice about the orders you are agreeing to. Also, be aware that if you have property matters that involve superannuation splits or property transfers, the orders need to be very specific to be enforceable.
It is possible to make an application for consent orders without the help of a lawyer, but it is highly recommended that you seek the advice of an experienced family lawyer. It’s important to note that there are many complex issues that can arise with the drafting of the consent orders, and an attorney will be able to identify any weaknesses and help you navigate any potential pitfalls.
In particular, if your property matters involve superannuation splits or property transfers, the orders need to be extremely specific to ensure they are enforceable. A skilled lawyer can help ensure that your orders are drafted in a way that will be approved by the court, as the court does not simply rubber stamp these orders without asking a lot of questions. So, it’s important to work with a lawyer to ensure that your consent orders are legally sound and will be enforceable in the future, and finally, that you will be comfortable with the form of the orders made as it will be unlikely you may not simply be able to adjust them to suit your particular needs in the future.
Frequently Asked Questions on Consent Orders
What is a Consent Order?
In Australia, consent orders are used in cases where the parties do not require the court to make a decision for them. The parties come to an agreement on their own, which is then written in the form of consent orders that the parties then file in the Federal Circuit and Family Court of Australia to be made as formal court orders. Consent orders can be made regarding parenting and/or financial matters like property settlement or spousal maintenance and can also be used in some circumstances to vary or discharge existing family court orders.
How Long Does a Consent Order Last For?
A consent order can last indefinitely unless one party later successfully applies to have it set aside. Once a consent order is approved and made by the court, it is valid in perpetuity.
Can the Court Reject a Consent Order?
The court can reject your application for consent orders if it believes the orders are not in the best interests of dependents or are not fair to both parties. This is a determination the court must make in reviewing the application, regardless of the fact that both parties have agreed to the conditions set out in the draft orders.
Are there Any Time Restrictions in Filing Consent Orders for Financial Orders?
If you want to file an application for consent orders for financial orders, there are certain time frames that you need to keep in mind. If you have obtained a divorce order, you have a 12-month period to file an application for consent orders or commence court proceedings in relation to financial matters. However, if you were in a de facto relationship, you can file within two years of the separation date in relation to financial matters.
In case you need to file an application for consent orders outside of these time frames, you will have to seek leave of the court to file the application. For more information or legal advice on applying for consent orders, contact an experienced family lawyer.