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Property Consent Orders Australia: A Complete Guide

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Consent Orders are legally binding agreements reached between parties undergoing specific or divorce. Property consent orders are a specific type of consent order, outlining how you and your former partner will divide your property, finances and sometimes even superannuation. They are used to provide clarity and certainty over your finances during an emotionally turbulent time.

A defining characteristic of these orders is their consensual nature. Both parties retain autonomy over the terms of their agreement and can tailor it to their unique circumstances. Once a mutually agreeable resolution is reached, it is then submitted to the court for formal approval.

The court’s role is to scrutinise the agreement to ensure fairness and equitable distribution before formalising it as a legally enforceable order. This process assures both parties that the agreement holds legal weight and can be relied upon for future enforcement if necessary.

Also read: Can You Do a Consent Order Yourself?

Why are property consent orders beneficial?

Legal Protection

Property consent orders provide legal protection. Without a legally binding agreement, your ex-partner could potentially make financial claims against you in the future.

By securing a consent order, you are safeguarding yourself against such possibilities and ensuring that once the assets are divided, the matter is settled for good.

Clarity and Certainty

Having a consent order in place provides clarity and certainty. Both parties know exactly what to expect and what is expected of them. This clarity can significantly reduce the stress and uncertainty often associated with divorce and separation.

Cost-Effective

Reaching an agreement and having it formalized through consent orders is generally much less costly than going to court for a property settlement. Obtaining a consent order saves you money, time and emotional energy.

Flexibility

Consent orders also offer flexibility, giving you and your ex-partner the opportunity to reach an agreement that works for you, rather than having a court impose one on you. This leads to more satisfactory outcomes for both parties.

Also read: Benefit of Consent Order: 7 Advantages You Need to Know

How do you apply for a property consent order in Australia?

Step 1: Reach an Agreement

First, you and your ex-partner must agree on how your property, finances, and debts will be divided. This can be achieved through direct negotiations, mediation, or with the assistance of lawyers. It is crucial that both parties agree voluntarily and understand the implications of the consent order.

Step 2: Draft the Consent Order Documents

Once you have an agreement, the next step is to draft the consent order documents. These include:

  • Application for Consent Orders: This form outlines the agreement details and both parties must sign it.
  • Minutes of Consent Orders: This is a document that specifically details the terms of the property division, including the distribution of assets, liabilities, and superannuation.

It’s advisable to have a family lawyer review these documents to ensure they accurately reflect the agreement and that all legal requirements are met.

Step 3: File the Application

The completed and signed documents must be filed with the Family Court of Australia or the Federal Circuit Court. There is a filing fee involved, which you need to pay upon submission. The courts will then review the documents to ensure the agreement is just and equitable.

Step 4: Court Review

The court will review your application to ensure that the agreement is fair, based on the information provided and in accordance with the law. If the court is satisfied that the agreement is just and equitable for both parties, it will issue the consent orders.

Step 5: Implementing the Orders

Once the court issues the consent orders, they become legally binding. Both parties must adhere to the terms specified in the orders. Non-compliance can lead to legal consequences.

Also read: What Happens When the Court Disagrees with Consent Order?

What does the court consider when approving property consent orders?

When approving property consent orders in Australia, the court’s primary consideration is whether the proposed agreement is fair and equitable for both parties. The court will assess the overall fairness of the proposed division, taking into account all relevant factors of the case including:

  1. Financial Contributions: The court examines the financial contributions made by each party during the relationship, including income, assets brought into the relationship, inheritances, and gifts.
  2. Non-Financial Contributions: Contributions such as homemaking, parenting, and supporting the other party’s career are also taken into account.
  3. Future Needs: The court considers the future needs of each party, particularly if one party has primary care of children or has a lower earning capacity. Factors like age, health, and future earning potential are relevant.
  4. Child Support: If children are involved, the court will assess whether the proposed arrangements will adequately provide for their financial needs.
  5. Independent Legal Advice: The court usually requires evidence that both parties have received independent legal advice before entering into the agreement. This ensures that they understand the terms and implications.

It’s important to note that the court does not simply approve consent orders. It has a duty to ensure the agreement is just and equitable, even if both parties have already agreed to the terms. In some cases, the court may suggest amendments or even reject the agreement if it is deemed unfair.

Can you modify a property consent order?

Consent orders can be modified in Australia, but this is not always a straightforward process. The ability to change an existing order hinges on several factors:

1. Mutual Agreement: The simplest scenario is when both parties agree to the proposed modifications. In this case, you can draft a new consent order outlining the changes and submit it to the court for approval.

2. Significant Change in Circumstances: If you can not reach an agreement, you can apply to the court to vary the existing order. However, you’ll need to demonstrate that there has been a significant change in circumstances since the original order was made. This could include:

  • A substantial increase or decrease in either party’s income
  • The discovery of previously undisclosed assets
  • A significant change in the needs of a child covered by the order
  • Health issues affecting either party’s ability to earn income

3. Court’s Discretion: Ultimately, the decision to modify a property consent order remains at the court’s discretion. It will consider the proposed changes, the reasons for the change, and whether the modification is just and equitable for both parties.

How long does it take to finalise property consent orders?

The time it takes to finalise property consent orders in Australia can vary depending on several factors, but it generally takes between 6 to 8 weeks from the date of filing the application with the court.

This timeline can be influenced by:

  • Complexity of the case: More complex cases with extensive assets or complicated financial arrangements may take longer to process.
  • Court workload: The volume of cases before the court can impact processing times.
  • Compliance with requirements: If the initial application is not complete or requires additional information, it can cause delays.
  • Court availability: The scheduling of hearings and the court’s availability can affect the timeline.

Secure your financial future with Justice Family Lawyers

Ensure your peace of mind during divorce or separation with our expert guidance on Property Consent Orders in Australia.

At Justice Family Lawyers, we equip you with the knowledge to navigate these agreements confidently, safeguarding your financial interests. Ready to take control? Contact us today for a personalised consultation and start your journey towards a fair and secure settlement.

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