Many people who have separated are able to reach an amicable agreement with their former spouse about property settlement, spousal maintenance and arrangements for their children, without ever needing to commence proceedings in Court.
It is vital that you have your agreement formally recognised by the Court. If not, then any agreement you reach will not be binding and cannot be enforced. You will also not be able to take advantage of stamp duty concessions for transferring property between you and your former spouse. You can have your agreement recognised by the Court by filing an Application for Consent Orders.
The Application for Consent Orders must be accompanied by:
- a draft Minute of Consent Orders (this document specifies the orders you want the Court to make);
- your marriage certificate (if you were married);
- the requisite filing fee (unless you are eligible for an exemption); and
- If your Application concerns arrangements for your children, you will also need to file a copy of their birth certificates.
If you are seeking property/financial orders, you will also need to file the following documents:
- for de facto couples, an affidavit setting out the facts which provide the Court with jurisdiction to make the orders;
- a copy of the Certificate of Title for each real property (i.e. land) being transferred pursuant to the orders; and
- for couples who wish to split their superannuation, a letter from the trustee of the superannuation fund approving the orders, and a copy of the last 2 member statements for the fund being split.
For Western Australians, we encourage you to visit the Family Court of Western Australia’s website to download and read the Consent Orders Kit (WA).
For Territorians, please visit the Family Court of Australia’s website to download and read the Consent Orders Kit (NT).
In property/financial cases, we generally recommend that you obtain tax advice about the orders you want the Court to make, to avoid unforeseen tax consequences.
If you are refinancing a mortgage into your sole name, you should also obtain pre-approval from your bank or lender to ensure that you will be able to give effect to the orders, once made by the Court.
Finally, the proposed property settlement must be objectively just and equitable. If not, then the Court will refuse to make orders. In these circumstances, the parties will either need to renegotiate the deal or finalise matters by way of a Financial Agreement.
If you would like assistance with the preparation and review of your Application for Consent Orders, we are here to help.