Your Comprehensive Guide to Understanding and Navigating Consent Orders in Family Law
Disclaimer: This blog is not a substitute for legal advice but a guide. Call JJ Lawyers for a robust legal defence!
Navigating the complexities of separation or divorce can be overwhelming, especially when faced with legal jargon like ‘consent orders.‘ You might find yourself asking, “What exactly are consent orders? How do I obtain them, and why might I need one?“
Consent orders are vital in family law proceedings, especially in property division or child custody cases. But understanding these orders doesn’t have to be a stressful task.
At JJ Lawyers, we’re not just experienced in family law – we’re experts in making it understandable for individuals like you. Our extensive experience handling cases involving consent orders lets us guide you through every step of your journey.
Ready to simplify the process of understanding and obtaining consent orders? Read on for a comprehensive guide, or contact us directly for personalised assistance.
What are Consent Orders?
Consent orders are legally binding agreements between two parties, often following a divorce or separation. These orders, predominantly utilised in family law, formalise arrangements related to property settlements, spousal maintenance, and parenting plans. The Family Law Act 1975 (Cth) lends these agreements their legal weight, ensuring enforceability.
Control Over the Outcome: The Advantage of Consent Orders
One of the key benefits of consent orders is the control they grant you and your former partner over the outcomes of your separation.
For property matters or child support, the decisions remain in your hands. Once both parties agree on the proposed orders, they can apply for consent orders through the Court’s portal. This crucial step can seem daunting, but with the proper guidance, it becomes significantly more manageable.
Take parenting consent orders, for example. These detailed agreements specify the arrangements for your children’s care, defining their living conditions, their time with each parent, and significant decisions about their education and healthcare. The Court only approves these consent orders if they conclude that the arrangements are in the best interests of your children.
Similarly, property consent orders provide a blueprint for financial arrangements post-separation. These include the division of property, details about spousal maintenance, and other financial matters.
Types of Consent Orders: Parenting and Property
Different Types Of Consent Orders
Parenting Consent Orders: These orders detail the specifics of parenting arrangements, such as the child’s living conditions, the time spent with each parent, and significant decisions related to education and healthcare.
Property Consent Orders: These orders outline financial arrangements after a separation or divorce, including the division of property and details about spousal maintenance.
Spousal Maintenance Consent Orders: In some cases, consent orders can address spousal maintenance separately, outlining the responsibilities of each party.
Child Support Consent Orders: While less common, consent orders can sometimes address child support matters. However, these are typically managed separately by the Department of Human Services.
Please note that these categories are not mutually exclusive, and a set of consent orders can cover multiple areas depending on the situation’s specifics.
In limited circumstances, consent orders may also address child support matters. However, these are typically managed separately by the Department of Human Services.
Whether navigating property settlements or establishing parenting plans, consent orders offer a way to retain control over your situation and ensure legally binding outcomes.
Steps to Obtain Consent Orders
After understanding consent orders, the next step is knowing how to secure them.
Drafting the Proposed Consent Orders
If you and your former partner agree on the terms of a property settlement or parenting arrangement, formalising this agreement is usually beneficial by filing consent orders. This move ensures your contract is legally binding and protects all parties involved.
Before applying for consent orders, draft the proposed orders with clear, detailed, and specific terms. For instance, a consent order should outline the allocation of time spent with children, the division of property, and financial agreements. Legal advice is crucial at this stage—even if the separation is amicable. An experienced family lawyer can guide you, protecting your legal rights.
Applying for Consent Orders with the Family Court
With your draft of the proposed consent orders, the next step is applying for consent orders with the Family Court. This process involves completing and submitting the relevant application form and your drafted orders through the Court’s portal. A filing fee is associated with this, depending on the complexity of your family law matter.
For the DIY application kit, see it here. If this process looks too daunting, contact our trusted and experienced family lawyers in Sydney, who have spent years walking clients through complex consent orders.
How Much Do They Cost?
The process of obtaining consent orders involves various fees, primarily set by the Family Court. It’s essential to be aware of these costs to plan accordingly. The current fee for applying for consent orders is $195. This fee covers the Court’s review and, if approved, making the consent orders.
For the complete list of fees, see here on the Federal Circuit And Family Court Of Australia Website: LINK.
Time Frame for Consent Orders Application
Remember, there’s a time limit for applying for these orders. For a divorce, the deadline is 12 months from the date your divorce becomes final. For a de facto relationship, you have two years from the date of separation to apply for consent orders.
Court Review and Approval
The Court then reviews your application to ensure the proposed orders are fair and equitable. If everything is in order, the Court approves the application, making your consent orders legally binding.
If you’re considering applying for a consent order, don’t hesitate to contact JJ Lawyers. Our expertise in Australian family law lets us guide you through the process and help you make the right decisions for your unique situation. Call us or book a consultation for a more in-depth discussion.
When Should I Apply For A Consent Order?
Recognising when to apply for consent orders is an essential part of managing the transition during a separation or divorce. For consent orders to be viable, the parties involved must have already separated. This separation can be under the same roof, meaning that while you might share a physical space, you no longer live as a couple.
Immediately Post-Separation and Other Circumstances
Theoretically, an application for Consent Orders can be lodged as early as the day following the separation. In contrast, you must wait 12 months to file for divorce. It’s also possible to seek Consent Orders solely concerning property matters, even if there are ongoing Court proceedings related to parenting issues, and vice versa.
Time Limitations and Extensions
For married couples, there’s a 12-month window post-finalisation of the Divorce Order to apply for financial Consent Orders. However, this time limit can be extended with mutual consent. For de facto relationships, the time limit is two years from the date of separation.
If an extension isn’t agreed upon, you must seek the Court’s permission to hear the application out of time. This would initiate the litigation process, thereby precluding the use of Consent Orders. Understanding these time frames and the process involved is critical to smoothly navigating family law proceedings.
Understanding Why People Apply for Consent Orders
When a relationship ends, it often sets in motion a series of changes that necessitate essential decisions. Among these, figuring out how to handle shared property, financial matters, and parenting responsibilities can be some of the most significant. Consent orders play a critical role in this process, providing a legal framework that safeguards each party’s interests and rights.
Consent orders offer a legal mechanism to formalise agreements between separating couples, making private decisions legally enforceable. This can immensely benefit providing a sense of security and certainty in a turbulent time. The assurance that the terms of the agreement are enforceable by law can offer peace of mind to both parties, ensuring that the decisions agreed upon are more likely to be adhered to.
To summarise, people typically apply for consent orders to:
- Make private agreements legally binding and enforceable.
- Protect their rights and interests after a separation or divorce.
- Provide a framework that must be followed by both parties, adding a layer of security and predictability.
- Avoid potential complications or disputes that can arise from informal agreements.
- Ensure that the terms of the agreement are respected and implemented as decided, with legal recourse available if the agreement is breached.
The Role of the Court in Approving Consent Orders
Navigating the journey of separation or divorce can be challenging. Still, it’s important to remember that the legal system is designed to ensure a fair and equitable resolution for all parties involved. In the context of consent orders, the Court’s role is paramount. The Court’s primary function is to review and approve the consent orders, ensuring that they are in the best interests of all parties involved, especially in cases that involve children.
The Court’s Rigorous Review Process
The Court performs a rigorous review of the proposed consent orders, examining every detail to ensure that the orders are just, equitable, and in the children’s best interests. This thorough and comprehensive review process reflects the court’s commitment to justice and fairness. The court considers the circumstances of each party, their needs and capacities, and the needs of the children, if any.
Ensuring Fairness and Equity
Once the Court is satisfied that the proposed consent orders are fair and equitable, they are approved and legally binding. This enforceability is crucial as it gives all parties the confidence that the terms of the agreement will be adhered to. In cases where there may be a breach of these orders, the Court’s role extends to enforcing these orders, ensuring that the rights and interests of all parties are protected.
Key Aspects of Consent Orders
When dealing with consent orders, there are several vital aspects to remember.
Legal Binding Nature of Consent Orders
Firstly, it’s essential to understand that a consent order is legally binding concerning parenting or property matters. This means that any breaches can have serious consequences. For instance, if a party consistently fails to comply with the terms of a parenting consent order, seeking recourse through the Family Court could be a potential step.
Time Limits for Consent Orders
Secondly, consent orders come with time limits for application. These timelines can vary depending on whether you’re divorced or have separated from a de facto relationship. For a divorce, you have 12 months from when it is final to apply. For a de facto separation, the limit is two years from the date of separation. Adhering to these timeframes is crucial to accepting your application for consent orders.
Court Approval for Consent Orders
Additionally, the Court will only approve consent orders if it believes the proposed orders are in the children’s best interests (for parenting orders) or are fair and equitable (for property consent orders). The Court’s review of your application is thorough, paying close attention to the specifics of your proposed orders.
Alternatives to Consent Orders
Lastly, while consent orders can provide a clear roadmap for post-separation arrangements, they might not always be the best choice. In some situations, an informal agreement may suffice. However, it’s important to note that such agreements aren’t legally binding and may not offer the same level of protection as a consent order.
What Happens If You Breach a Consent Order?
Navigating the complexities of separation or divorce is challenging enough without the added worry of what might happen if a consent order is breached. However, it’s crucial to understand that consent orders are legally binding. This means that there can be serious consequences for failing to adhere to the terms set out in these orders.
Consequences of Breaching a Consent Order
When a party fails to comply with the conditions set out in a consent order, they breach the order. The implications of such a breach can be severe and can range from legal penalties to adjustments in the terms of the order itself. For instance, a court may issue a fine or impose a jail term in severe cases. Moreover, the aggrieved party may seek a contravention order, which could lead to agreement changes, additional orders, or even compensation.
Legal Recourse and Remedies
The aggrieved party can apply to the court to enforce the order. The court will determine the appropriate course of action upon reviewing the breach. This could involve varying the original order, imposing conditions on the party in breach, or ordering compensation for time lost with a child in the case of parenting orders.
Breaching a consent order is a serious matter, and it’s essential to understand that such actions have legal consequences. It is always advisable to adhere strictly to the terms of the consent order and, if circumstances change, to seek a variation of the order through the correct legal channels rather than risk a breach.
Do Consent Orders Expire?
Expiration Date of Consent Orders
Short answer: Yes, but it depends.
In most cases, the longevity of a consent order depends on the details specified within the order itself. If the consent order agreement includes an expiration date, then that date will determine when the order expires. If no such date is mentioned, the consent order can continue indefinitely until an application is made by the parties involved to conclude the agreement.
Parenting Consent Orders and Age of Majority
However, when it comes to parenting and children matters, the duration of a consent order may be tied to the child’s age. Typically, a consent order dealing with child-related matters may cease to be in effect when the child reaches the age of majority, generally 18 years. This transition marks the point when the child becomes a legal adult.
The specifics of each consent order can vary, so it’s essential to understand your own order’s details thoroughly. If you’re unsure or have questions, seeking legal advice to ensure you’re fully informed about your rights and obligations is always wise.
Variations and Applications to the Court
Suppose there is a significant change in circumstances. In that case, parties can apply to the court to have the consent order varied or discharged. This process involves a thorough review by the court, considering whether the changes warrant an adjustment to the orders.
In summary, while property consent orders are typically final, parenting orders can be varied in light of significant changes in circumstances. It’s always important to seek legal advice if you believe there may be grounds to vary or discharge a consent order.
The Importance of Legal Advice
Navigating the realm of consent orders can be complex and daunting. This is where the importance of legal advice comes into play.
Navigating Consent Orders with a Family Lawyer
Seeking guidance from an experienced family lawyer can ensure you understand all the legal ramifications and make informed decisions. Like ours at JJ Lawyers, a dedicated legal team can guide you through the process and safeguard your interests.
Drafting Consent Orders: The Role of Legal Advice
Having a lawyer by your side can prove invaluable when drafting your proposed orders. They can ensure that the language used in these orders is clear, precise, and legally sound. Additionally, they can provide valuable advice on what terms are fair, equitable, and in the children’s best interests, helping you avoid common pitfalls.
Considering Broader Implications of Consent Orders
Legal advice also comes into play when considering the broader implications of a consent order. This includes potential impacts on spousal maintenance and financial matters. A legal advisor can guide you through the pros and cons of filing for a consent order versus maintaining an informal agreement, depending on your circumstances.
My Ex-Spouse and I Have Agreed on Parenting Arrangements for Now, but What if They Need to Change in the Future?
Change is a part of life, especially as children grow and their needs evolve. This may necessitate changes to parenting arrangements that were initially agreed upon and formalised through a consent order. You might be wondering how to adjust these legally binding arrangements.
Understanding the Flexibility of Consent Orders
Consent orders, although legally binding, offer some flexibility. They can be varied or discharged under certain circumstances, usually when circumstances change significantly. For example, if one parent needs to relocate for work, if the child’s needs drastically change, or if it’s been a considerable amount of time since the order was made, the Court may consider revising the parenting consent order.
Changing Consent Orders: The Process
To change a consent order, you’ll need to apply to the Family Court. This process usually involves obtaining legal advice, drafting the proposed new orders, and filing an Application for Consent Orders. The courts will then review the application, prioritising the children’s best interests in their decision-making.
Informal Agreements and Their Limitations
Alternatively, you can enter into an informal agreement to change your parenting arrangements without going back to Court. However, it’s important to remember that such agreements aren’t legally binding. To ensure the new arrangements are enforceable, they should be formalised via a new consent order.
Changes in parenting arrangements are possible, even when they’ve been formalised through consent orders. The key is to navigate these changes in a way that prioritises the children’s best interests and respects the legal implications of consent orders.
My Ex-Spouse and I Have Agreed on How to Split Our Assets. Does Superannuation Have to Come Into It?
Superannuation is often one of the most significant assets a couple has. It should be considered when dividing assets after a separation or divorce. Under the Family Law Act 1975 (Cth), superannuation is treated as a type of property, which means it can be divided by agreement or court order when a relationship breaks down.
Superannuation Splitting: What Does It Mean?
Superannuation splitting does not convert superannuation into a cash asset – it remains subject to superannuation laws. For example, it is typically preserved until retirement age. However, superannuation splitting gives each party an entitlement, depending on their agreement or Court order.
The Process of Splitting Superannuation
Splitting superannuation involves several steps. These include valuing the superannuation, formalising the agreement through a binding financial agreement or a consent order, and serving the necessary documentation on the superannuation trustee.
It’s essential to note that not all superannuation funds are the same, and the rules around splitting can vary. Furthermore, superannuation cannot be claimed or withdrawn directly, even after a divorce or separation. Accessing superannuation is still subject to meeting a superannuation condition of release.
Seeking Legal Advice
Given the complexities of superannuation splitting, obtaining legal advice from an experienced family lawyer can be crucial. They can guide you through the process, helping ensure your financial arrangements are fair and equitable.
My Spouse and I Have Agreed on How to Split Our Assets. What’s Next?
Reaching an agreement on splitting assets after a separation or divorce is significant. However, it’s essential to recognise that an informal agreement isn’t legally binding and may lead to potential disputes.
Formalising Your Agreement: The Role of Consent Orders
The next step is formalising your agreement with consent orders and binding them legally. Consent orders clearly outline the division of all assets, such as real estate, vehicles, savings, debts, and even superannuation. The process involves drafting and filing the property consent orders with the Family Court (as mentioned above) and an Application for Consent Orders.
Navigating the Legal Landscape with Professional Support
At this stage, it’s crucial to seek the assistance of a legal professional. At JJ Lawyers, we understand the importance of addressing every detail in your consent orders. Our skilled team are ready to assist in drafting your consent orders and guiding you through the process.
Approval and Enforcement of Consent Orders
Once the consent orders are drafted and filed, they are reviewed by a registrar at the Family Court. The registrar must be satisfied that the orders are just and equitable before they can be approved. When the court makes the consent orders, they become enforceable. Non-compliance can result in severe penalties, underscoring the importance of understanding your legal rights and obligations.
After you and your ex-partner agree to split your assets, formalising your agreement with legally binding consent orders is the next crucial step. It ensures financial certainty and prevents future disputes.
My Ex and I Agree on Parenting Arrangements. What’s Next?
Agreeing on parenting arrangements is a crucial milestone in separation or divorce. The next important step is making that agreement legally binding through parenting orders.
From Agreement to Legally Binding Orders
Parenting consent orders detail all the agreed-upon arrangements. These can include specifics such as who the children will live with, how much time they will spend with each parent, and how major life decisions will be made for them.
The drafted consent orders are submitted to the Family Court using the Courts Portal. A filing fee is also typically required along with an Application for Consent Order. A court registrar then scrutinises the proposed orders. They must be satisfied that the charges are in the children’s best interests. This principle holds paramount importance under the Family Law Act 1975 (Cth).
Approval and Enforcement of Parenting Orders
Once approved, these parenting orders become legally binding and can be enforced by the court. Breaching these orders can lead to severe consequences. Therefore, seeking legal advice from an experienced family lawyer is beneficial to ensure that your orders accurately reflect your agreement and protect the best interests of your children.
The Role of Parenting Plans
Alternatively, you could consider a parenting plan. A parenting plan is a written agreement that sets out parenting arrangements. It’s worked out and agreed upon jointly, without the need to go to Court. However, it’s important to note that a parenting plan isn’t a legally enforceable agreement, and it differs from a parenting order made by a Court.
As children grow and circumstances change, you may need to update your parenting agreement or consent orders to suit the evolving needs of your children.
Once you and your ex-partner have agreed on parenting arrangements, formalising these with legally binding parenting orders or a parenting plan is a crucial next step. Remember, the children’s best interests should always be at the forefront of these decisions.
Consent Orders: Quick FAQ and Summary
Q: What are consent orders?
A: Consent orders are legally binding agreements formalising arrangements related to property settlements, spousal maintenance, and parenting plans following a divorce or separation.
Q: How are consent orders obtained?
A: Consent orders are obtained through drafting the proposed orders, submitting an application to the Family Court, and obtaining Court approval.
Q: What are the different types of consent orders?
A: There are mainly two types of consent orders: Parenting and Financial Consent Orders. However, consent orders can also address spousal maintenance and child support matters.
Q: What happens if a consent order is breached?
A: Breaching a consent order can have serious consequences, ranging from legal penalties to adjustments in the terms of the order itself. The aggrieved party can apply to the Court to enforce the order.
Q: Do consent orders expire?
A: The expiration of consent orders depends on the specifics outlined in the order. For orders related to children, the order typically expires when the child reaches the age of 18.
Key Points:
- Consent orders are legally binding agreements between two parties and are widely used in family law proceedings.
- Obtaining consent orders involves drafting proposed orders, submitting an application to the Family Court, and obtaining court approval.
- Consent orders can be categorised into parenting and property consent orders, with the former detailing parenting arrangements and the latter focusing on financial arrangements post-separation.
- Consent orders are legally binding, and any breaches can have serious consequences. The aggrieved party can apply to the court to enforce the order.
- The expiration of a consent order depends on the specifics outlined within the order. Typically, orders related to children may cease to be in effect when the child reaches the age of 18.
- Consent orders can be varied or discharged if there is a significant change in circumstances.
- Superannuation is treated as a type of property in a relationship. It can be split by agreement or court order during a separation or divorce.
- Formalising agreed-upon asset splits and parenting arrangements with legally binding consent orders is crucial in a separation or divorce process. This ensures financial certainty, prevents future disputes, and protects the children’s best interests.
Do not miss our dedicated law blog for further exploration of key legal subjects! Here, we tackle issues such as ‘What To Do When An AVO Expires‘, ‘What Is Bigamy‘, and ‘What Is An Intensive Corrections Order‘.
If you have specific questions regarding your legal situation, feel free to contact our team of family lawyers and criminal law experts in Sydney to schedule your free consultation!
