What is a consent order? Everything you need to know!

What is a consent order?

Consent orders are entered into by parties when they have agreed on a property division or a parenting arrangement during a separation. A consent order will generally outline how you and your ex-partner would want property of the relationship to be treated and parenting arrangements to be decided.

Consent orders are useful for parties who want to resolve their property and parenting disputes out of courts, by reaching mutual agreement. Consent orders are effectively an out of court settlement, saving you money and time avoiding litigation. For simplicity, you can have both your property and parenting arrangements in one consent order.

A consent order is useful because:

• Can be entered into when both parties agree to the terms.

• Saves time and money.

• It is not mandatory for both parties to have independent legal advice, however, parties must be aware of their rights.

• Consent orders are formalized through the court, therefore are enforceable.

Consent orders can be categorized in to 3 types depending on its content.

1. Property consent orders: This type of consent order would exclusively include clauses in relation to division of property agreed between you and your ex-partner.

2. Parenting consent orders: This type of consent order would exclusively include clauses in relation to parenting arrangements agreed between you and your ex-partner.

3. Property & parenting consent orders: This type of consent order would include clauses in relation to both division of property and parenting arrangements agreed between you and your ex-partner.

Consent orders are generally entered into either during separation or divorce, but can be started at any stage. However, once a divorce application is finalised by the court, you have a strict 12 months to apply for property consent orders to be finalised by the court.

Consent orders are most suitable for parties who are willing to settle their property or parenting disputes out of courts. If parties are on amicable terms after separation or divorce, this would be considered the ideal time to enter into consent orders, as the situation can be negotiated.

Yes, a judge may refuse a consent order if they are not satisfied that the orders drafted represent a fair and equitable outcome. It is important to know that refusal of your consent orders by a judge does not mean that they are void or cancelled, it simply means that it requires work.

A judge would issue a requisition note, stating the amendments required for your consent orders to be formalized and approved by the court. As soon as the amendments are done and the consent orders are re-filed, the judge would finalize your consent orders.

Property consent order examples

“Property “X” to be sold at a public auction and the sales proceeds to be applied as follows:

§  Firstly, to settle the outstanding mortgage.

§  Next to make payments for the real estate agents and all the other relates sales expenses.

§  The remaining balance to be divided between the parties equally/percentages agreed”.

“All independent properties that were brought prior to marriage or relationship to be retained by the relevant parties in accordance with their ownership”.

“A sum of xxx to be paid to the spouse A [name of the spouse] 3 months after signing the consent orders, failing which spouse A would not vacate the matrimonial house”.

“There will be no future claims on spousal maintenance, superannuation or property by the parties on each other’s property”.

Parenting consent order examples

“Child A to primarily live with the mother while having supervised visits with the father on every other weekend”.

“The medical decisions of child A to be agreed upon by both mother and father, failing mutual agreement of both parties, the opinion of a doctor to be given priority and effect”.

“Change over to happen at [place of changeover]”

“The children are to spend their birthdays with their father from 8 a.m.- 3 a.m. if it is a weekend or a school holiday or from 4.30 p.m.- 7 p.m. if it is a school day”.

It is not mandatory to obtain independent legal advice when entering into consent orders. However, it is advisable that both parties obtain legal advice to avoid any future complexities, such as setting aside the consent orders based on bias or undue influence.