What You Need To Know About Consent Orders & Divorce or Separation
Understanding what Consent Orders are is a crucial first step in finalising family law matters after a marriage or de facto relationship ends. These orders are legally binding, meaning that both parties who sign them can have the orders legally enforced if the other party fails to comply.
They are used by separating or divorcing couples to outline how parenting arrangements and financial matters will be handled now and in the future. Consent Orders are legal orders that are approved by the Federal Circuit & Family Court of Australia (FCFCOA), which formalise agreements reached between you and your ex-partner after a relationship breakdown.
Consent Orders can outline financial and/or parenting arrangements following a divorce or separation. They provide a clear, legally binding resolution to ensure both parties are on the same page and to avoid future disputes. Although they are not essential for everyone after a relationship ends, they are very commonly used in Australia to legally clarify the details of financial and family matters.
Do You Need To Have Consent Orders In Place?
Consent Orders ensure both parties stick to the agreed terms (or can be legally followed up if a breach occurs), creating protection due to their enforceability under the law. This certainty and legal recognition make them preferable to private agreements for many individuals, as having them in place reduces the likelihood of future legal conflicts.
Once again, Consent Orders are not necessary for everyone, and you and your ex-partner have alternatives, such as:
- Financial Agreements (similar to a prenuptial, but after a relationship ends, but not for parenting issues), or,
- Private arrangements
In some cases, if there are no children involved and no assets to divide, you may not need to do anything—but run your situation by a lawyer first, as the other party can make claims later (within the time limits), if nothing is legally finalised.
How Do You Make an Application for Consent Orders?
You can apply for Consent Orders through your lawyer or directly to the courts. Before making an application, a number of things must happen first.
Reaching an agreement with your former partner
Consent Orders are based on both parties consenting to the orders being made. This doesn’t mean everyone will agree or be 100% happy with the outcome in every area, and sometimes both parties will need to compromise – especially if they both want the same things for themselves!
Both parties will need to outline how they wish to organise the care of the children and how they would like to see assets divided. This can be done through informal conversations and reaching a private verbal or written agreement. It can also be done in a family mediation session or negotiated between lawyers for each party.
From here, these agreements will need to be drawn up into a legally sound format, forming the basis of the court application.
What if we can’t agree?
If you are struggling to reach an agreement, you have a few options. Using the court system is generally a last resort, and in most cases, you’ll need to go to mediation or Family Dispute Resolution (FDR) anyway.
At this stage, you can:
- Continue to negotiate with the other party, or with the support of lawyers, or in mediation / FDR settings, or,
- Apply to have the courts decide on the outcome, with both parties presenting what they would like.
If the matter goes to court and both parties haven’t reached an agreement, it’s quite possible the court will decide on the day how to make the orders. However, if there are larger issues or disputes, allegations of abuse, family violence, hidden assets, or non-financial disclosure, the matter may have to go to trial.
For most people, a trial is the hardest route to reaching a formal agreement and can take years to resolve. This is because matters will go into the FCFCOA list, and there is generally a significant backlog of matters to be heard. In some cases, it’s the only way, but it’s best avoided where possible if both parties can reach a fair compromise.
Final orders or interim orders?
There are two types of orders that can be sought – interim and final orders. Many people apply for final orders directly from the outset, having no need to do both interim and final orders.
Interim orders are temporary or short-term, and final orders are, as they sound, permanent, final orders. Interim orders can also be used to decide on current living arrangerments, such as living separately under one roof, or address early care needs for a baby who is being breastfed, for instance.
Interim orders are often used when there are initial or important matters to address, when situations may change, or when a final order is yet to be decided by the court. They can cover things that need immediate attention, such as parenting matters or financial support.
Interim orders are designed to maintain stability and ensure both parties’ needs are met until final orders are made. Typically, an interim hearing takes place quickly, with the court making temporary decisions that can change after a full hearing.
Final orders are permanent decisions, made by the court after all evidence and arguments have been considered. They provide long-term clarity and resolution for both parties.
What Does The Family Law Act Require For Consent Orders to Be Made?
The Family Law Act requires that:
- Parenting Orders: Must be in the child’s best interests.
- Financial Orders: Must be fair and just for both parties.
Both parties need to agree and consent to the orders being made. The orders then need to be approved by the court.
Filing Consent Orders
Once an agreement has been reached, you’ll need to send the proposed Consent Orders to the court for review.
Applications & supporting documents will need to be submitted
To make an application for Consent Orders, you or your lawyer will need to complete and submit several forms to the FCFCOA, including an “Application for Consent Orders” and the proposed orders detailing the agreement.
Both parties must sign these documents. Supporting documents, such as financial statements, may be required. Once filed, the court will review the application to ensure it is fair and in the best interests of any children involved. If satisfied, the court will issue the Consent Orders, making them legally binding.
Application costs will need to be paid, as well as any associated legal costs
Unless you are eligible for reduced fees or an exemption, you and your ex-partner will need to pay the court fees for the Consent Orders application. Costs can add up if interim and final orders are being made, and you’ll also need to take into account costs for:
- Legal advice
- Legal documents that need to be drafted
- Any fees for mediation or negotiations between lawyers
- Any costs for taxation and financial advice
- Any other costs related to reaching an agreement
You can view the current FCFCOA family law fees here.
Consent orders are made and finalised.
Consent Orders are formally in place when both parties agree on the terms and orders have been submitted to, and approved by, the court. The orders will define any ‘next steps’, such as changes in care arrangements or transfers of money, superannuation or assets. The court may reject them at times, but that’s unlikely if they’ve been properly drafted and are fair and practical to implement.
Do You Need a Lawyer to Make an Application for Consent Orders?
While it is not mandatory to have a lawyer to make an application for Consent Orders or to obtain independent legal advice, it is highly recommended, considering the long-term effects these arrangements can have on your family life and financial future. If lawyers are to be involved, remember that one lawyer can’t act for both parties.
An experienced family lawyer can provide valuable advice, ensuring that the agreement is fair and that your rights are protected. They can also assist in accurately completing and filing the necessary documents. This can avoid delays due to incorrect applications. Having someone with legal expertise is particularly beneficial in complex cases involving substantial assets or contentious parenting arrangements, helping to prevent future disputes and ensuring compliance with legal requirements.
What Can Parenting Consent Orders Cover?
Parenting orders cover all of the main aspects that are relative to children after a divorce or separation. They are similar to a ‘Parenting Plan’ but are more formal and legally enforceable.
Most parents start with a Parenting Plan (usually a written agreement outlining parenting arrangements), and many decide to formalise them into Consent Orders.
Parenting orders usually include:
- Living arrangements for the kids, including days and times with each parent and drop off and pick up times.
- Parental responsibility (decision making) – which may be shared and equal, or given to one parent only.
- Where children will spend time on birthdays, school holidays and other holidays.
- Details about education, health and extra-curricular activities.
They may also cover:
- How parents will communicate with each other about parenting matters
- How any parenting conflicts will be resolved
- Non-denigration orders can also be made, which are along the lines of – “Neither parent shall speak badly about the other in front of the child, or allow anyone else to do so when the child is present.”
- Emergency situations
What Can Financial Consent Orders Cover?
Financial Consent Orders cover all matters related to shared assets and debt after a relationship breakdown – including the family pets!
Some couples will make an agreement privately and action it, others may choose a Financial Agreement, and others will formalise property settlement agreements with a Consent Order.
Financial orders generally cover the following:
- Who gets which items, or what % of – money, shares, houses, cars, investment property and super
- Where any family pets will go
- Who will pay any outstanding debts
- How a business will be divided
- Financial support, like spousal maintenance
How are Consent Orders Actioned & Enforced?
Consent Orders are legally binding agreements made between parties in family law matters and approved by a court. They are commonly used in divorce, parenting matters, property settlements or spousal maintenance cases. Once agreed upon, Consent Orders outline the specific arrangements or decisions that both parties have agreed to follow.
Actioning Consent Orders
Once parenting and financial orders are made and approved by the court, they have the same legal force as any judgment or order handed down by a judge. Once approved, Consent Orders become official legal documents. Parties are provided with a copy, and the orders are legally enforceable, and ‘next-steps’ will need to be actioned.
Here is how that may look:
- Financial Settlements: One party may need to transfer a specified amount of money to the other within an agreed time after the order is made.
- Property Sale: The family home may be sold, with the proceeds divided equally, or as stated in the order.
- Debt Payments: Each party may be required to pay a certain portion of shared debts, e.g., Party A pays $5,000 of the credit card debt, and Party B covers the remaining balance.
- Parenting Arrangements: Parenting time may be shared, for example, 70% with one parent and 30% with the other, with a changeover occurring at 5:00pm weekly on a certain day at the local park.
- Ongoing Supervision: If necessary, an order may include regular reviews or mediation sessions to monitor compliance and resolve any disputes.
Enforcement of Consent Orders
Enforcing Consent Orders is essential if one party does not comply with the terms set out in the agreement. The FCFCOA has mechanisms in place to ensure the orders are followed.
Communication & Mediation / FDR
Before taking legal action, the parties may be required to attempt mediation or seek alternative dispute resolution methods. The courts often insist that parties try to resolve their disagreements outside of court to avoid unnecessary litigation, if it is safe to do so.
Breaches of Orders
If one party breaches the Consent Orders, the other party can take the following actions to seek enforcement.
Contempt of Court
If one party wilfully refuses to comply with the orders, the court may hold that party in contempt of court. This can result in serious penalties, including fines or, in extreme cases, imprisonment. Contempt charges are taken seriously and are designed to compel compliance.
Enforcement of Property Settlement
If the Consent Orders involve a property settlement (for example, the transfer of assets), and one party fails to comply with the agreed terms, the other party can apply to the court to enforce compliance. The court may take steps to compel the transfer, including issuing orders for the sale of property or transferring assets directly.
Financial Penalties & Sanctions
If there are issues with a spousal maintenance Consent Order, the court can enforce the order by deducting amounts from wages, tax refunds, or other income sources to ensure payments are made.
Issuing Warrants
In some cases, the court may issue a warrant to help enforce the order. This can include directing police to assist with ensuring compliance, especially in more serious cases of refusal to abide by the orders.
Types of Orders and Their Enforcement
There are various types of Consent Orders, and each may have different enforcement measures. Some examples include:
- Parenting Orders: These typically relate to visitation schedules. If one party is not following the parenting arrangements, the other party can seek enforcement through the FCFCOA, including orders to make up for missed time or even penalties for non-compliance.
- Property Settlement Orders: If the order involves the division of property, and one party refuses to transfer property or assets as agreed, the other party can seek court intervention to enforce the settlement.
- Spousal Maintenance Orders: If a party fails to pay spousal maintenance as per the Consent Orders, the other party can ask the court for an order to collect the unpaid maintenance or ask for the amount to be deducted from income.
Can You Change Consent Orders After They Are Made?
Final financial orders are enforceable by law and can only be legally varied in specific circumstances outlined in the Family Law Act. If exceptional circumstances exist, or both parties agree to the changes, it’s likely that final orders can be altered. The parties can, however, make their own arrangements to voluntarily vary a Consent Order, without going back to court, so long as the agreed changes are in writing, signed by both parties, by letter or email.
Under recent Family Law Amendments, which came into effect in May 2024, the courts will need to be sure that changes to parenting Consent Orders are, unless by mutual agreemrent:
- Due to a significant change in circumstances
- In the best interests of the children.
Need To Seek Legal Advice Or Assistance Regarding Consent Orders?
You should now better understand what Consent Orders are and their vital role in a divorce or separation. If you need further assistance or advice, feel free to reach out to our Melbourne Consent Orders team today.
