Introduction
If you and your partner separate, you need to consider what is to happen in relation to parenting or financial arrangements, or both. While couples may be motivated to litigate separation matters, reaching an agreement with your former partner or spouse may be more cost effective, faster and potentially less stressful. Conversely, if you reach an agreement but decide to keep things informal, you can be taking a big risk. One way to ensure that you have a properly documented, binding and enforceable agreement is by documenting it in consent orders. Consent orders are written agreements between parties, which is filed in court and upon approval, becomes a legally binding court order.
When Can You Obtain Consent Orders?
Generally, you can apply for consent orders under two categories:
- Parenting orders- the care, development and welfare of your children
- Spousal Maintenance- the division of property or maintenance for a former spouse/de facto spouse
What are the Benefits of Consent Orders?
There are several benefits of documenting your property settlement or parenting (or both) agreement in consent orders. Firstly, your agreement will be binding and legally enforceable. Consent orders have the same legal effect as an order made after a court hearing thus, there can be no misunderstanding in the future or areas of dispute if one person changes their mind. Also, if your former partner or spouse breaches the consent orders, there will be penalty, the nature of which will depend on whether the breach was minor or major.
What is the Process of Obtaining Consent Orders?
The process of obtaining consent orders is relatively easy. It is a purely administrative process and you do not need to appear before the Court.
There are three main steps to the process.
Negotiation
This step involves discussion with your former partner or spouse to reach an agreement. The negotiation stage can involve tactical considerations and compromises.
Drafting
This step involves preparation of necessary documents that you must file with the Court.
Firstly, you must complete an application for a consent order. The application sets out details regarding each party and the children, a statement of assets, liabilities and financial resources of each party. It also outlines the consequences of the order that you are seeking.
Secondly, you must draft your proposed consent order templates. This is the main document that sets out the terms of your agreement and outlines how to put the agreement into action.
If you are seeking consent orders in relation to property settlement, you must provide notice to third parties prior to filing. For example, if you decide to split your superannuation, you must inform the fund so that they can provide you a letter confirming that they will comply with the orders.
Filing
The last step involves lodging the consent order and supporting documents in court. You will have to file an original copy and three other copies of each document.
Are There Any Time Restrictions?
Time limits do not apply to an application for consent orders seeking parenting orders. You can file this application at any time after the separation. However, time limits do apply to filling an application for consent orders seeking property orders. You must file it within 12 months of a divorce or two years since the end of a de facto relationship.
Are There Any Fees?
When filing your application for consent orders, you must pay a filing fee of $165. You may be eligible for an exemption from this fee if you can supply the court with documentary evidence to support your reasoning.
What happens After Filing?
Once you file your application, a registrar at the court considers it. If the registrar thinks that the orders should be made, they sign the orders and send you the sealed and stamped copies. However, if the registrar does not think that the orders should be made then they will send you a letter explaining what you need to do. This process may take several weeks.
Conclusion
While it is not mandatory to get independent legal advice before seeking consent orders, it is highly recommended. A lawyer can assist you in ensuring that the documents reflect the agreement that you have reached with your partner. For further help, contact one of our family lawyers here.
