The who, what, when and why of Consent Orders
What are Consent Orders?
A Consent Order is a document which is approved and sealed by the Court to record a ‘settlement’ reached by spouses who have separated. The terms of settlement can be in relation to financial and/or parenting matters.
This Brief deals with only Consent Orders with respect to financial matters.
A Consent Order has the same legal effect as if it was made by a Judge after a contested hearing, but you don’t need to go through the long and costly litigation process.
The terms of settlement can be complex or simple i.e. involve transactions between various structures, or give effect to each party keeping what they already own.
Who can enter into Consent Orders?
Consent Orders can be entered into between separated de-facto or married couples. Interested third parties are sometimes also party to Consent Orders, but this is rare.
The Court will only issue a sealed Consent Order if the terms proposed by the parties are considered to be ‘just and equitable’. This means that the Court must form the view that, in consideration of all matters between the parties, the outcome proposed by the Consent Orders is fair.
In negotiating a settlement, it is important to consider the process required by the Court. This process involves:
- Identifying the net value of the parties’ assets;
- Considering the parties’ contributions towards the relationship;
- Addressing any future needs either party may have, such as their earning capacity, age, health and whether they have the care of children; and
- Ensuring that the settlement is ‘just and equitable’.
If the outcome has been reached by having regard to the above, it is likely to be considered ‘just and equitable’.
The Court may consider the terms of the settlement to be too much in favour of one party. In these cases, the Court will not seal the Consent Orders. In this scenario, the parties have the option of renegotiating the settlement to make it more balanced, or to document the ‘unfair’ arrangements through a Binding Financial Agreement.
What transactions can Consent Orders cover?
Consent Orders are intended to deal with all financial matters relevant to a separating couple. This includes transfer of ownership in real property and personal property (such as motor vehicles, boats, furniture and electronics), and payment of cash from one party to another (either in a lump sum or over time). It may also include the splitting of superannuation entitlements held by the parties within public offer or self-managed superannuation funds.
For business owners and investors, it is also important to ensure that the Consent Orders cover off on transfer or ownership or control of various trading and investment entities. This may require a party to resign from positions within entities (i.e. directorship and/or as trustee), transfer shares or units, or disclaim an interest in a trust.
Lastly, the parties should ensure that future responsibility for any existing or expected liabilities is clearly recorded, usually with corresponding indemnities.
When are Consent Orders used?
Consent Orders can be entered into without the need to set foot in a Court or if parties reach a settlement during Court proceedings.
Where parties are able to reach a resolution without issuing proceedings, they are required to file two documents with the Court:
- An Application for Consent Orders: This is a Court form that must be completed by both parties to provide the Court with details of their financial positions. Each party is also required to state on oath that they have been full and frank to the other (i.e. that they have disclosed all information relevant to the decision to settle).
- A Consent Minute of Order: This is a document which outlines the terms of the agreed settlement and contains the wording to give effect to the settlement. This is what the Court seals as the record of settlement, so it needs to be clear and comprehensive.
Where parties reach a settlement while Court proceedings are already underway, the parties only have to prepare a Consent Minute of Order for the Court to seal. This is because the parties have already had to make separate disclosure to the Court regarding their financial positions when the proceedings were commenced. In either case, the sealed Consent Minute of Order will be required to facilitate any transfers under the settlement, including to ensure no stamp duty is payable on transfers between parties.
Why should you use Consent Orders?
Once the Court seals the Consent Orders, the terms are intended to be final. It is difficult to set aside the settlement unless there is a valid reason, for example:
- A party entered into the agreement under duress (i.e. was forced to agree);
- There was not full and frank disclosure of the parties’ financial positions;
- There has been fraudulent behaviour;
- It is impossible to give effect to the orders; or
- There have been exceptional circumstances relating to one of the parties’ children that means the orders are no longer reasonable or workable.
Draft your Consent Orders properly so you can say goodbye to the separation process.
Separation isn’t easy. Once a resolution is reached, you should expect finality and to be able to move on with your life. The key is to document your family law settlement properly.
We believe that Consent Orders are an excellent way to finalise your financial relationship in a way that helps you preserve your personal relationship. Consent Orders are also a very cost-effective option as they can save you from the very expensive and stressful process of litigation.
We are experienced in commercial and business law, which gives us an edge in ensuring that your Consent Orders cover all aspects of your financial lives – your personal assets, your business assets, your trust interests and your super. We will also provide advice and prepare the Consent Orders to make the settlement as tax-effective as possible.
Our aim is to help you finalise your property settlement in a comprehensive and efficient way, so that you can move on with your life and leave the stress of separation behind. If you would like to speak to someone about your family law matter and utilising Consent Orders, call us on 1300 654 590 or email email@example.com.