Consent orders
Consent Orders are one way to formalise financial and parenting arrangements when you have reached an agreement with your ex-partner.
Consent Orders are one way to formalise financial and parenting arrangements when you have reached an agreement with your ex-partner. If you have agreed on both parenting and property, you can formalise both in the one set of orders. It is important you have your orders drafted by an
experienced family lawyer to ensure they have been prepared correctly and consider issues such as Capital Gains Tax (CGT).
We are adept at complex property settlements involving dowry entitlements (such as mehrieh) and divorce, so you can be confident our team has the knowledge and understanding to resolve every aspect of your family law matter.
We have agreed. Why do we need orders for property? Can’t we just split everything?
This is an issue we see quite frequently. The matrimonial home is sold, parties agree on how they will divide the proceeds of sale, and they put off their divorce because it doesn’t seem urgent. They assume everything has been finalised and that financial ties have been severed.
A few years down the track when they have moved forward in their lives, they file for divorce and receive a letter from a lawyer asking for a formal property settlement.
Yes, this happens. A court order (or binding financial agreement) settles property matters on a final basis. Unless certain defined conditions are met, there is no second bite of the cherry.
This is commonly called the ‘clean break principle’. It is codified in section 81 of the Family Law Act, which says that “the court shall, as far as practicable, make such orders as will finally determine the financial relationship between the parties to the marriage and avoid further proceedings between them”.
If there is no court order (or binding financial agreement), there is nothing to prevent you or your ex-partner coming back for that second bite. This usually involves superannuation which requires a
formalised agreement to split.
Other issues that arise are where one party is retaining the matrimonial home or other property jointly owned by the parties. If you are retaining a property, you will incur stamp duty on that transfer unless you have consent orders or a binding financial agreement. The cost of stamp duty may be lower than the cost of preparing consent orders or a binding financial agreement.
Importantly, if either party is seeking to refinance an existing mortgage over a property, the bank will require the agreement to be formalised by way of consent orders or a binding financial agreement.
If we sign consent orders, do we have to go to court?
No. These days Consent Orders are filed online with the court with no appearances required. If the Court isn’t satisfied with the terms of the orders that have been signed and filed by the parties, they will send a requisition which details the specific issues with the orders so there is an opportunity to amend and refile the orders.
We have final consent orders for parenting. Can they be changed?
Final parenting orders can be changed with the agreement of both parties, but it is much more difficult where the parties do not agree they should be changed. In that case, the parent wishing to change the final parenting order must prove to the court that there has been a significant change of circumstances since the final orders were agreed.
It is important that you take the time to consider whether the arrangements formalised in a consent orders will work for your children into the future. You may also want to consider including future schooling arrangements in the order, however; its important you seek advice about child support and payment of school fees if private schooling is on the table.
Can I claim my mehrieh?
In most cases the answer is yes, but the question is often whether you should. We recommend you obtain advice in Australia before you start the process overseas.
Our team understands the complexities and nuances of DFRDB pension schemes, Military Super, defence related parenting issues, and FIFO parenting challenges. Our experience in this regard is first-hand, which makes us a preferred provider of family law services to military and FIFO families.
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