Consent Orders – Everything You Need To Know

Ross Dunlop
Consultant
Barrister and Solicitor

Posted on 25/03/2019, Last Updated on 28/11/2019

Consent Orders – Is my Agreement Final?

Family Law is often in the headlines for all the wrong reasons: the cost of legal representation, month upon month of delay, the uncertainty of outcomes, etc. But it isn’t generally highlighted just how often separating couples manage to resolve their property and parenting disputes without recourse to litigation at the Family Court.

Either with or without consulting lawyers, parties can (and should) embody their agreement in formal documents known as an Application for Consent Orders and a Minute of Orders Sought made to the Family Court of Western Australia at reasonable cost, and without anyone having to appear at Court.

Even with the most amicable and trusting of separating couples, there are significant risks in leaving your property settlement as an informal “gentleman’s agreement”. A detailed document signed by both parties and witnessed by a Justice of the Peace setting out the terms of a proposed agreement will have no standing or enforceability if it is not approved in a particular format by the Family Court. There are countless anecdotes (or “horror stories” – depending on who you act for!) about parties facing Court proceedings for property settlement often many years after an informal agreement was reached and implemented. Make no mistake, if Final Orders have not been issued, there is no absolute guarantee that your agreement is “final”.

Accordingly, if you have separated but have never contemplated entering into Consent Orders with your former spouse/partner (or a Financial Agreement – with even more rigorous hoops and hurdles to overcome and covered elsewhere on our website), then keep reading…

 

Why Should I Get Consent Orders?

The benefits of obtaining Consent Orders are numerous, but the following are probably the leading reasons:

  1. Obtaining Orders draws a final financial line under the parties’ relationship at a specified point in time.  It allows both parties to move on with their lives – new jobs, new residences, new partners, even new children – without having to worry about claims being made by the other party, sometimes several years down the track.
  2. Obtaining Consent Orders within a reasonable time of separation means that future windfalls, such as compensation pay-outs, inheritances or redundancy payments are not “up for grabs” if they occur after the Orders are made. This would not necessarily be the case if the parties were simply relying on an informal arrangement that had not been properly approved by the Court.
  3. Obtaining Consent Orders avoids misunderstandings as to what the parties thought was to happen. Arguments often arise because both parties were not really “on the same page” and their informal agreement (even if it is written) is insufficient to clarify the dispute. Clear, concise Consent Orders can prevent these disputes from arising.
  4. Consent Orders are legally enforceable, whereas informal agreements to do certain things with regard to future parenting arrangements or to implement a property distribution are not necessarily worth the paper they are written on (if they are written at all!).
  5. Parties move on. Their emotional, physical and financial fortunes can change enormously within a year or so of separating or reaching an informal financial arrangement. Enshrining their agreement in Orders makes it impossible for the party who subsequently suffers a decline in circumstances, e.g. loss of long-term employment or diagnosis of a significant illness, to pursue the other party for a “bigger slice” of the property pie at a future date.
  6. Many settlements will involve the transfer of property, such as the former matrimonial home, from one spouse to another. Unless the transfer is “sanctioned” by a Consent Order (or a Financial Agreement made under the relevant legislation) then stamp duty will be payable on the transfer based on the value of the other party’s share of the property. Making an Application for Consent Orders, even with the assistance of a lawyer, usually costs significantly less than the stamp duty otherwise payable.

 

Can I Get Consent Orders About Everything?

Not quite. Most Consent Orders applications concern final property settlements, spousal maintenance or parenting arrangements. However, it is not possible to make Consent Orders about child support issues or to make a parenting order in favour of someone who is not a parent, grandparent or another relative under Section 65G of the Family Law Act.  Nor would it be possible to make a Consent Order about whether a de facto relationship existed or not. Instead, this would be a matter of fact and evidence, not agreement.

 

Can the Court Refuse to Make an Order if We Apply for it by Consent?

In property matters, the Court can only make Final Orders which it considers to be “just and equitable” (or “fair and reasonable”) in all the circumstances of the case. Even where parties otherwise agree, the Court can still refuse an application where, for example, the parties have agreed to an equal distribution of the net assets but, objectively, one party should receive substantially more. This is why the Form 11 Application that accompanies the Minute of Proposed Orders is so comprehensive. The Court needs to know about the assets, the parties’ respective financial and non-financial contributions, and their likely future needs before determining if the Orders it is being asked to make are just and equitable.  

If the parties insist on proceeding with their proposed settlement even if it is objectively unfair, it may be more prudent to enter into a Financial Agreement, instead.  The difference is that such agreements are not initially subject to judicial scrutiny but, conversely, both parties must obtain independent legal advice before entering into the agreement. Parties can always apply for Consent Orders without taking any legal advice whatsoever, although it is always better to seek some basic professional reassurance before doing so as parties don’t get a “second chance” after the Orders are made. In parenting matters, the Orders must be considered by the Court as being in the best interests of the child – an Application can be rejected if the Court feels that the Orders fail to properly protect those interests.

 

When Can I Apply for Consent Orders?

The parties must actually be separated before an Application for Consent Orders can be made. Such separation can occur under one roof, i.e. without the parties living physically apart in separate residences, so long as they are no longer living together as husband and wife or de facto partners. Technically, it is possible to apply for Consent Orders the day after separation occurs, whereas the parties must wait 12 months to file for divorce.

It is also possible to apply for Consent Orders in relation to property issues alone, even if the parties are involved in litigation with respect to parenting matters at Court. The reverse is also the case. Where parties were married, they have a maximum of 12 months after their Divorce Order is made final within which to apply for financial Consent Orders. It is, however, always possible for the parties to seek an Order that the time limit itself be extended by consent. With de facto relationships, the corresponding time period is two years from the date of separation.  If the other party will not agree to extend this period then it will be necessary to make an Application for leave of the Court for the Application to be heard out of time. This will, however, trigger the litigation process and an Application for Consent Orders can no longer be made.

 

Are my Consent Orders Worth the same as Orders made by a Judge at Trial?

Yes. Once the Consent Orders are made, they carry judicial weight and can be enforced with as much authority as any Orders made after a court hearing. Equally, the consequences of breaching Consent Orders can be similar to breaching those Orders made in the course of litigation.

 

What About Superannuation Splitting Orders?

Although the legislation dealing with the splitting of superannuation funds as part of a property settlement is complex, there is, again, no formal requirement for either party to obtain independent legal advice in relation to the construction of those Orders. However, those particular clauses are not necessarily straightforward or easy to understand and usually contain the most “legalese” of property orders routinely made at the Family Court.  

It is important to remember that where superannuation splitting orders are sought by way of consent, the agreement of the Trustee to the Superannuation Fund being split is also required. You must accordingly send a copy of the proposed Orders to the Trustee of the relevant fund to ensure that they are satisfied with the terms and format of the Orders which do, of course, affect the Trustee. The Trustee then has 28 days within which to respond, intimating any changes or corrections it requires in the draft Orders. A copy of the letter from the Super Fund approving the Orders in their final format should be forwarded to the Family Court with the Application. If the Court is not satisfied that the Trustee of the relevant fund has been given due notice under the Act, then the Orders will not be made at that time.

 

Consent Order Fees

There is a standard filing fee of $165 when submitting an Application for Consent Orders to the Family Court of Western Australia. However, if you are eligible for an exemption e.g. you hold a Health Care Card, then you will require to copy both sides of that card and file it with your Application. If you are not eligible for an exemption, but payment of the fee will cause you financial hardship, you can complete and upload the Application for Exemption from Fees Form – Financial Hardship.  Your Application for Exemption will then be considered by the Court. If you have e-filed your Application for Consent Orders you will need to pay the filing fee by bank card or credit card when you complete the online interactive Application.

In the normal course, you can expect your Application to be approved and Orders issued within around 4 – 6 weeks of its being submitted to the Court.  If granted, the parties will be notified of this by the Orders simply being issued. If, however, a Judicial Officer has some concerns or queries they will write to both parties asking for more information. It would probably be a good idea to obtain independent legal advice at this stage.

 

Finally – What You Need to Consider

To conclude, it is important that you understand the nature and effect of the Orders you are seeking by consent. Even if you are determined to apply without engaging a solicitor, it would still be prudent to obtain some independent legal advice about the potential consequences of the Orders you propose. You may wish to take your completed Application to a family lawyer in order to seek some reassurance that you are not “shooting yourself in the foot”.

If you are seeking Property Orders following the breakdown of a marriage, you should consider and understand Sections 75 and 79 and Part VIIIB of the Family Law Act.  If you are seeking Financial Orders after a de facto relationship has broken down, you must read and understand Sections 205ZG and 205ZD of the Family Court Act (WA) (please note that these latter provisions only apply to parties in Western Australia).

If you are seeking Spousal Maintenance Orders, married couples should read and understand Sections 72, 74 and 75 of the Family Law Act; and Sections 205ZC and 205ZD of the Family Court Act (WA) will be relevant to de facto maintenance.

If you are seeking Parenting Orders you should read and understand Sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act and Sections 66A, 66C, 70A and 89AA of the Family Court Act (WA).

The benefits of obtaining Orders by consent are many, and allow the parties to move on with their lives without the stress, cost and inconvenience of litigation.

If you are seeking more information about the possibility of resolving your matter by way of Consent Orders, or wish to obtain some reassurance that the documents you have drafted are appropriate, then please make an appointment with DS Family Law.

One of our experienced solicitors will take you through the documents and provide advice as to the likelihood of Orders being made and any potential pitfalls to be aware of.

 

Summary of Key Points

  • An Application for Consent Orders can be made at any time following separation;
  • Consent Orders can be made with respect to both property and parenting issues, at comparatively minimal cost;
  • Informal Agreements, even if signed and witnessed are not conclusive and are not enforceable;
  • Failure to embody clearly understood agreements in Consent Orders can have disastrous consequences for one party’s future financial position.

 

The above information is general in nature and is not specific advice for your situation. If you have questions about how the information contained in this article may apply to your situation, you must seek independent legal advice.

 

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