You’ve reached an agreement with your ex-partner about your parenting and property arrangments. Congratulations, the hard part’s done. But there is one more thing – its always possible for your ex-partner, to apply to the Court for something completely different to what you originally agreed. An informal agreement is just that – informal, not necessarily final and not legally binding on either of you. If you want certainty and peace of mind, you’ll need a Consent Order.
A Consent Order is a legally binding document that is approved and is enforceable by the Family Court of Australia. If you have reached an agreement about your finances, the judge must be satisfied that your agreement is fair. If you have reached a parenting agreement, the judge must be satisfied that the order sought, is in the child’s best interest. To get a Consent Order, you don’t need to go to Court.
If you don’t have a Consent Order, you risk a lot – financially and emotionally. In some instances, you’ll need a Consent Order, if you want to implement the terms of your agreement. The main reasons include:
- Change of mind: If you don’t have a Consent Order, you run the risk that your ex-partner will change their mind. You’ve negotiated hard for an agreement, and you’ll be back to square one.- more time, more money, more stress.
- Future Claims: You leave yourself open to further financial claims against you – even though you have reached an agreement-possibly years after.
- Stamp Duty: If your agreement includes a transfer of the home to either of you, stamp duty is payable. If you have a Consent Order – no stamp duty is payable, saving you thousands of dollars.
- Superannuation Split: If your agreement includes a split of a superfund, the Trustee of the superfund will need a Consent Order. With a Consent Order, the Trustee can implement the terms agreed- without one, it can’t.
- Enforceability: A Consent Order is enforceable. If your ex-partner is in breach of a term, you can ask the Court to enforce its terms. For example, if you have agreed to sell the house and your ex-partner subsequently refuses.
To get a formal agreement, one that is officially recognised by the Court – you must make an Application for a Consent Order to the Family Court of Australia. Your application must accompany a set of draft Consent Orders.
You can do this yourself but drafting a Consent Order is not an easy task.
Drafting Consent Orders need to be clear, sufficiently detailed and include default provisions. i.e. details setting out what will happen if a specific term cannot be implemented as initially envisaged. For example, if you agree that the house sells within 56 days, but the house doesn’t sell in that time frame. What happens next?
We assist clients, who have attempted to draft their Consent Orders to save money, and we understand that. Unfortunately, however, this is often a false economy. The Family Court of Australia often rejects Applications for a Consent Order because of a lack of clarity, missing information, failing to provide a trustee of a superfund with procedural fairness and drafting errors.
We have helped those clients obtain a Consent Order and can help you avoid the stress and extra costs, as a result.
We offer an affordable, efficient drafting service for both parenting and property matters. We can also provide the right documentation to a trustee of superfund and assist in its implementation.