What are Consent Orders?
The next article in our “What Is?” series explains what Consent Orders are, and how to obtain them.
It’s quite common for people who have gone through a separation to still be amicable and able to reach an agreement (or engage a lawyer or mediator to assist in reaching an agreement) as to:
- the care of their children,
- how their property is going to be divided up, or
- both of those things.
Of course, it’s wise to ensure that any agreement which is reached is properly documented and formalised and this is where consent orders can be used.
Consent orders are a document which makes an agreement that two people have reached into a binding court order, but without the need to actually attend upon Court.
The benefits of having consent orders for parenting matters include:
- minimising disputes about the ongoing care of children,
- the orders acting as an authority for third-party’s such as doctors, schools, and extra-curricular providers to communicate with both parents,
- the Court being in a position to enforce the arrangements should one parent decide they no longer wish to comply with the parenting arrangements.
A good way to think about consent orders for parenting issues is that they are a ‘break glass in case of emergency’ document. That means that two parents are always free to come to an agreement about parenting issues but, if there is no agreement, there are consent orders which set out the arrangements.
For property matters, the benefits of having consent orders include:
- formalising and finalising property matters so as to ensure that there is a ‘line in the sand’ and that neither party is able to come back in the future to make a claim against the others property (save for in limited circumstances).
- stamp duty exemptions if the agreement contemplates the transfer of any real property,
- the ability to do a superannuation split (i.e. where some of one person’s superannuation is rolled over into the superannuation fund of the other person).
How can I get Consent Orders?
If there are no proceedings in Court consent orders can be obtained via the completion of two documents:
- An Application for Consent Orders
- Consent Orders
The Application for Consent Orders is a pro-forma document available from the Family Court website. It provides the Family Court with a ‘snap-shot’ of the current and anticipated care arrangements for the children and/or the current and anticipated property division.
The Court requires that information so as to enable them to ensure that:
- the proposed parenting orders are in the best interests of the children
- the proposed property orders are just and equitable.
The second document, the consent orders, is the document which sets out the actual agreement and what has been agreed.
Depending on the complexity of the agreement it can often be useful to get assistance in drawing up those documents simply so as to ensure that the proposed agreement adequately covers that which has been agreed.
Once those documents are prepared they are submitted to the Family Court. From there, the documents go to a Registrar of the Court who reviews them and ensures that the “best interests/just and equitable” considerations have been met. Provided the Court has no concerns with the proposed agreement the Consent Orders are stamped and sealed by the Court and then sent out to everyone in the post. Those Orders then become as binding and enforceable as any other Order which may come from the Court, but without the need for costly, lengthy, and stressful litigation.
Murdoch Lawyers use their best endeavours to resolve all matters by agreement, and frequently utilise consent orders to formalise those agreements.
This publication has been carefully prepared, but it has been written in general terms and should be viewed as broad guidance only. It does not purport to be comprehensive or to render advice. No one should rely on the information contained in this publication without first obtaining professional advice relevant to their own specific situation.