Have you and your ex reached agreement about parenting arrangements for the children and/or how to divide your assets? You can formalise your agreement by way of a Consent Order. Read on to find out more.
HOW CAN I DOCUMENT A PARENTING/PROPERTY AGREEMENT?
If you and your ex agree on the future parenting arrangements for the children and/or a property settlement you can formalise that agreement by way of one or more of the following:
What is it?
When can it be used?
A Financial Agreement is a legally binding private agreement that does not need to be approved by the Court to be in force.
Property matters and spousal maintenance.
A Consent Order is a legally binding document made by the Court that sets out the parenting arrangement for the children and/or property settlement that you and your ex have agreed to.
Parenting and property matters and spousal maintenance.
The Family Law team at McInnes Wilson Lawyers can provide you advice as to which document is best suited to your circumstances.
ADVANTAGES AND DISADVANTAGES OF CONSENT ORDERS:
A Consent Order is entered into by parties who have reached an agreement and want to formalise the agreement. There is no legal requirement to formalise an agreement for parenting and/or property however in our experience formalising an agreement gives assurance to parties that the agreement final and minimises the potential for conflict in the future. We set out the advantages and disadvantages of Consent Orders below.
A Consent Order has the same effect as an Order made by the Court when a party applies to the Court and asks the Court to make a determination. The difference is with a Consent Order the process to obtain the Order is quicker and cheaper as you do not need to attend Court.
In property matters – you and your ex must fully disclose all of your financial circumstances to each other. This means you need to inform each other of all assets and liabilities in your name or that you have an interest in. There can be consequences for hiding assets.
You and your ex can hold each other accountable if one of you breaches the Orders. There are consequences for breaching a Consent Order. This is explained under “what if my ex breaches the Orders?”
You and your ex can withdraw your consent to the Orders any time prior to the Orders being made by the Court.
You do not need to obtain legal advice for the Consent Orders to be binding. In saying that Orders can be complicated to draft and the Court can refuse to make Orders that are not clear or able to be enforced. The Family Law team at McInnes Wilson Lawyers can draft effective and enforceable Orders that cover all of the relevant issues, for example in parenting matters time arrangements for every circumstance and in property matters the taxation implications associated with transferring interests in property and superannuation funds.
In parenting matters – If you and your ex do not agree on changing the Orders you can apply to the Court and ask the Court change the Order. You will need to show the Court that the circumstances have changed significantly since the Orders were made which means the Orders need to be changed. This can be a difficult argument to make. It can be easier to argue where the children’s safety is now at risk, such as if they have been abused by your ex.
In property matters – any transfer of property (such as the property you and your ex lived in) to you, your ex or a child of your relationship is exempt from payment of stamp duty.
In property matters – If you and your ex do not agree on changing the Orders you can apply to have the Order “set aside” or void in certain circumstances, including where the Order is impracticable because of circumstances that have arisen since it was made or where a party will suffer hardship. We can provide you advice on whether you would be successful in having your Order set aside.
Once lodged with the Court Orders are ordinarily made within a few weeks.
Usually, once the Order is made it is final and can only be changed by agreement or in certain circumstances.
To see what you can include in a parenting Consent Order check out our factsheet.
WHAT IF MY EX BREACHES THE ORDERS?
An advantage of entering into a Consent Order with your ex is that the Orders can be enforced. This means the Court can force your ex comply with the Orders among other things.
In property matters, if there is an Order requiring your ex to sign a document and they have not done so within the time frame, a Registrar at the Court can sign the document on behalf of your ex.
In both parenting and property matters if:
- Your ex breaches an Order (for example, in a parenting situation does not allow the child to spend time with you at a particular time or in a property settlement refuses you access to your belongings); and
- Your ex does not have a reasonable excuse for doing so, you can file a Contravention Application in the Court to force your ex to comply with the Orders and/or face punishment. If you are considering this, it is important that you seek legal advice first.
We addressed Contravention Applications in a previous blog – click here.
HOW DO I ENTER INTO A CONSENT ORDER?
You can enter into a Consent Order by filing the following documents:
- Application for Consent Orders – this provides the Court with background information it needs to consider whether the Orders you want are just and equitable (fair).
- Minutes of Consent (the proposed Orders) – this sets out, legally, the Agreement that you and your ex have reached.
Prior to making the Orders the Court needs to be satisfied they are clear and capable of being enforced. For property matters the Court needs to be satisfied the Orders are just and equitable (fair). Prior to parenting Orders being made the Court needs to be satisfied the Orders are in the best interests of the children. If the Court is satisfied it will seal (approve) the Orders and from that point on the Orders will be legally binding on you and your ex.
IS THERE A TIME LIMIT TO FORMALISE YOUR AGREEMENT?
Parties who have not reached agreement and want to apply to the Court for a parenting Orders or a property settlement need to do so within the following time limits.
Time limit to apply to the Court
One year from the date the Divorce Order takes effect.
Two years from the date of separation.
If you and your ex have reached agreement as to the Orders you want the Court to make, you may apply to the Court out of time if you both consent. Alternatively, you may apply to the Court out of time if, upon your request, the Court gives you permission to do so.
WE CAN HELP:
The Family Law Team at McInnes Wilson Lawyers is here to help you formalise your parenting and/or property settlement with your ex. We can provide you advice as to whether a Consent Order is the right option for you. Contact us today for an obligation-free appointment.
what to include in your parenting consent order
Find out some examples of what you can include when putting together your parenting Consent Order.