What are they?
Consent orders are agreements that are made between separated or divorced couples that have been formally approved by the Family Court of Australia. This agreement is usually in writing and has to be in the appropriate form to be accepted by the court. It is not a requirement to get a lawyer when completing a Consent Order. However, it is imperative that legal advice is sought before the agreement is filed in the court and emphasizes the best interest of the child be of paramount importance s.60D(1)(a).
A consent order covers the following areas:
Children Issues s.(60CA)
For issues concerning children and Consent Orders, the Family Law Act 1975, requires that the court are convinced from the parties that the child’s best interest is their primary concern (s.60CA). As a matter of fact, when making a parenting order, this is the most important aspect that needs to be considered by the court.
Maintenance of the Spouses s.(72)
For the maintenance of the spouses, this deals with issues concerning the finances. Each party in a marriage is entitled to spousal maintenance according to the Family Law Act 1975. This is based on the power the court has to exercise its discretion by virtue of s.(74). However, in using this power, the court has to consider matters contained in s.(75)(2).
Sale or transfer of property s.79(4)
For the sale or transfer of property and the order to be made by the court, several factors have to be taken into consideration such as financial contribution and non-financial contributions.
Advantages of Consent Orders
A Consent Order could be beneficial to either party for the following reasons:
- Avoid Stamp Duty and Capital Gains Tax
In property settlements, the parties would be exempt from Capital Gains Tax and Stamp Duty when they have entered into a Consent Order, which has been duly filed and formally approved by the Family Court of Australia. Furthermore, the Consent Order has to be dated before the date of the transfer.
- Cordial Relationship
After a divorce or separation, there could be animosity between the former spouses. However, having a consent order would prevent this because there is a binding agreement between both parties that could prevent resentment.
- Cost effective
Having a Consent Order could be cost-effective because it prevents both parties from paying legal fees for litigation that could take a while. This could be a waste of the resources that the family has, which a document like a consent order can prevent.
Having a Consent order could prevent one party from going back on their word. Due to a breakdown in a relationship, it could be difficult to trust either party; especially with issues concerning finances, property and children. Once both parties have a consent order that has been fully approved by the court, the terms of the agreement become enforceable which prevents either party from reneging.
Consent Orders vs. Financial Agreements.
Consent Orders are signed by both parties and lodged with the Court for approval. No attendance at Court is required by either party. Generally, it is not as expensive to file a Consent Order when compared to a Financial Agreement (but not neccesarily) as this is determined by the terms being sought by the parties and its intricacy.
Consent Orders cover broad areas like Sale or transfer of property, Maintenance of the Spouses and Children Issues. However, Financial Agreements are limited in scope in that they cover only financial matters.
Financial Agreements unlike Consent Orders, can be made at any time in the relationship. This could either be before, during or after there is a break down in the relationship between the parties. On the other hand, Consent Orders can only be made when the couple are separated or divorced.
For Consent Orders, it is not a requirement that legal advice is sort by the parties but it is advisable they do so. However, for Financial Agreements, both parties must obtain legal advice as this is a requirement from the Family Law Act 1975 s.90G(1)(b).
Disadvantages of Consent Orders
A Consent Order can be varied by the court at any time, especially for spousal maintenance as contained in s.83(1)(f) of the Family Law Act 1975. This could also be advantageous where one party seeks to obtain an increase in Spousal Maintenance and the court could take factors into consideration as contained in s.83(2).
- Time wasting
The court may take a lot of time sealing the orders because they have to be in the appropriate form to be accepted by the court. Furthermore, the resources at the disposal of the court could hinder the order from being approved quickly.
Are they binding?
Consent Orders are binding on the parties because it is a contractual agreement that the court can enforce.
Enforcing Consent Orders
Consent orders are enforceable because they are binding agreements between the parties. However, in cases where one party breaches the terms of the order, it would be enforceable on an application to the court.
Setting aside Consent Orders
Consent orders are binding on both parties because the Court can exercise its power by compelling the parties to satisfy the terms of the agreement. However, the Court can set aside Consent Orders for reasons such as hardship (especially to the child from the relationship), impracticability and when a party fails in complying with the terms of the order.