Are you recently separated? Have you been served with divorce papers? Or are you considering a divorce? If so, you may be wondering what a consent order is and why you need one.
In Australia, family law allows parties to make a written legal agreement by applying for a consent order. But what is a consent order, exactly?
A consent order is an agreement in writing that is approved by a court. They are used when you have made an agreement and want the court to make it into formal orders. This means you can resolve your dispute without having to go through expensive and lengthy court proceedings.
One essential purpose of consent orders is that they can help prevent future disputes from arising. Once an order is made, both parties are legally bound to adhere to its terms. This can provide peace of mind and certainty moving forward, especially if you have children together and need to continue to co-parent.
Moreover, a consent order is a legal instrument that enables the court to keep records of the parties’ agreement and enforce it in law. With that, it becomes a public document accessible to both parties, their lawyers and any other interested party. This provides transparency and accountability, which can help to resolve issues should they arise in the future.
With that, seeking a reputable family lawyer like us at Madison Marcus to draft your consent orders is highly recommended. We will provide you with the necessary guidance and advice specific to your situation to ensure that your interests are protected.
What Is a Family Law Consent Order?
Separation and divorce are not easy for the family. However, most of the time, circumstance dictates the need to protect the best interests of the children.
A consent order is a binding legal document that formalises parenting arrangements after separation. This is made by the court and can be enforced if one parent breaches the terms of the order. It provides certainty and stability for children during a time of family upheaval.
A consent order can be used to record and agree on any number of arrangements, including who the child will live with, how much time they spend with each parent, which school they will attend and other important decisions.
Types of Child Issues Subject of a Consent Order
When the court makes a decision, several issues are taken into account:
- Who the child will live with and the time that each parent is given to spend with the child.
- Child maintenance that includes schooling, medical and extra-curricular expenses, relocation of one or both parents and the wishes of the child.
- Issues that affect the children’s daily routine, well-being and growth.
If the court isn’t content, it may request additional provisions from the parties, produce more evidence or decline to grant requests.
How to Apply For a Child Consent Order
Applications for consent orders are made to the court by filing an initiating application and a proposed order paper. The process of applying for a consent order generally involves the following steps:
- You and your former partner must first try to agree on the proposed arrangements for your child or children.
- Once an agreement is reached, you can then apply for a consent order. You will need to complete and file several documents, including a notice of risk and a proposed parenting order. A date will then be set for a hearing, during which the court will consider your application and decide whether to grant the order.
- If the court grants the order, it will then be issued as a formal document. Both parties will be legally bound to adhere to the terms of the order. Keep in mind that you can only apply for a consent order if you have already filed for divorce or dissolution of your civil partnership. If you have not done so, you will need to apply for divorce or dissolution first.
What Is a Financial Consent Order?
Consent orders can assist couples in resolving their financial relationship without the need for legal action. In addition to saving money and time, avoiding the courts can help improve post-separation parenting relationships for couples with children.
However, when couples separate, they want to settle any financial dealings in the fairest and most appropriate method. And couples often resort to methods like binding financial agreements and consent orders. But what is the difference?
Binding financial agreements are made following the Family Law Act. In contrast, financial consent orders are applications that follow a particular form approved by the Family Court.
If everyone involved has agreed to the terms and wants to make the agreement official, they can apply for consent orders. What you need to do is to submit your application to the Commonwealth Courts Portal and make sure to attach essential documents.
Why Should I Get Consent Orders?
Consent orders are an excellent way to resolve relationship issues quickly and affordably, so you can move on with your life.
Here are several advantages:
- You may be exempt from paying stamp duty:
In Australia, stamp duty is a fee levied by state and territorial governments on certain paperwork and transactions. This means you have to pay stamp duty for insurance policies, vehicle registrations and transfers, leases and mortgages and transfers of property. In the case of consent orders, you are exempted from paying this fee when transferring property between you and your former partner in your division of assets for separation.
- Capital Gains Tax (CGT) rollover relief
The capital gains tax (CGT) is a tax paid on profits from the sale of assets, such as real estate. CGT is typically collected when ownership of an asset changes hands. So when a couple separates or divorces, assets transferred between them qualify for a CGT rollover providing that there is a consent order to defer tax consequences. CGT will apply to the person who will receive the asset when they later sell it.
- Legally binding
A consent order is a legally binding agreement between two parties that is submitted to the Federal Circuit and Family Court of Australia
Family Court of Australia and sealed by the Court. This has the same effect as if the judge had made the decision themselves, but without the time, expense and stress of going through an entire court process.
- In comparison to litigating, obtaining a consent order may be considerably less expensive.
Can I Get Consent Orders About Everything?
No, you can’t get consent orders about everything. For instance, you cannot make an order about child support as this is dealt with by the Child Support Agency. You can, however, make orders concerning spousal maintenance. You also cannot use consent orders to make changes to a will or superannuation policy.
Most consent order applications involve the following property settlements:
- This involves the transfer of property, the sale of property or the division of property spousal maintenance.
- This is when one person agrees to provide financial support to their former partner’s parenting arrangements.
- This can involve things, such as living arrangements and contact arrangements.
How Madison Marcus Can Help You
Because consent orders are legal documents, it’s important to get advice from a lawyer before you make any decisions. Also, the Australian court looks after the interest of both parties, making sure that the agreement is fair and reasonable. So, when drafting consent orders that meet your specific needs, you need a reliable lawyer to work with you.
At Madison Marcus, our family lawyers are experts in drafting consent orders. We understand the ins and outs of the law and can provide you with the advice and guidance you need to ensure that your application is successful.For all enquiries or initial consultation, contact us here.