Court proceedings can present a significant emotional and financial strain on parties. There are also significant delays in the Family Court for contested proceedings which can have the undesirable impact of having litigants fell that their life is on hold while they await determination of their matter.
Consent orders carry the advantage of being a very cost-effective way of resolving or tying up the loose ends of the relationship in a comparatively short space of time, enabling you to move on with your life.
Many people are able to reach agreement between themselves, or with the assistance of a lawyer, as to how their property should be divided between them, and the arrangements for care of their children.
However, without documenting such agreement, there cannot be certainty that you can rely on the terms of the agreement. Unfortunately, it is not uncommon for a party to renege on an agreement at a later point and commence contested court proceedings. When this happens, an informal agreement cannot be legally enforced by the Family Court.
To ensure that an informal agreement is enforceable and final, it should be documented in the form of a Minute of Consent Orders and filed at the Family Court with an Application to have the orders made. While the documents are submitted to the Family Court, the process does not usually require either party to appear in Court at a hearing.
Once orders are made by consent and are sealed by the Court, Consent Orders carry the same weight as any other order made by a Magistrate or Judge and can be enforced by the Court.
What can consent orders cover?
If both parties have come to an agreement in settling matters to finalise their relationship, the court can make orders by consent for the following matters:-
- parenting arrangements, including who the children live with and spend time with, who has parental decision-making responsibility and other orders;
- division of your joint and respective property and superannuation; and
- spousal maintenance.
There are some matters or which the court will not make orders by consent. The most common example of this is arrangements for child support or maintenance of the children, which is not ordinarily a matter in relation to which the court will have jurisdiction. There are other ways to document agreements for the financial support of children, which your solicitor will discuss with you.
Benefits documenting your agreement
Engaging a lawyer to draft your application and minute is relatively inexpensive, low stress and simple, particularly compared to contested court proceedings. Agreeing the way forward and having your agreement finalised as quickly and professionally as possible is also particularly advantageous where you have children and it is important for your relationship to remain workable as co-parents.
It is also important to consider the potential financial impact of not having property consent orders in place – without which you may:
- pay stamp duty on the transfer of any property (even from joint names to one person solely);
- pay CGT on the transfer of any relevant property;
- not be able to divide your superannuation, or create potential tax or regulatory issues if you try to do this yourself;
- potentially not be indemnified in relation to liabilities incurred during the relationship, including by either party, jointly or through any entity, and including taxation that may be later assessed.
Having property orders made also gives you certainty and finality in relation to your financial circumstances, and you can move on without risk of a future potential claim.
Process to obtain consent orders
Generally, the making of consent orders involves the following steps:
- The starting point is to discuss and reach agreement with the other party, either personally or with the assistance of a lawyer. We often start by writing a letter to the other party confirming the general terms of the agreement before proceeding to draw the documents, which can save significant time and cost if there are elements of your agreement to be ironed out.
- Once you have agreed, you (or your lawyer) need to draw an Application for Consent Orders and a Minute of Consent Orders. The Minute must detail the full extent of your agreement and must be set out in a form which is enforceable. It is important to have your Minute drafted or reviewed by an experienced family lawyer to ensure it covers everything that needs to be dealt with and is enforceable.
- Both parties then review the draft documents, ensuring that the Application contains full and frank disclosure of their respective financial circumstances and the Minute accurately reflects the agreement reached.
- Once you are each happy with the documents, you should then both sign each page of the Application before a JP or solicitor and also sign the Minute.
- The original documents must be filed at the Family Court and the filing fee paid (as at June 2019 in Western Australia the filing fee is $165). Depending on your circumstances and the nature of the orders sought in your Minute, you may need to file additional supporting documents, which your solicitor will discuss with you.
- Provided the Court can be satisfied that the property orders sought are just and equitable , or parenting orders sought are in the children’s best interests, the Orders will be made in terms of the Minute. If the Court has queries regarding the Application, the Registrar may write requesting further materials or may send your documents back with directions as to matters to be addressed. Often people who do not seek legal advice in the drafting of their documents have the documents returned with further action required before orders can be made. This creates unnecessary delay and difficulty which may be prevented by seeking advice from an experienced family lawyer.
- Your Orders should be made within about a month, depending on the court resources and number of applications they are presently dealing with. You will receive your Orders via the ComCourts Portal and can download them as soon as they are available.
Whilst there are many benefits associated with Consent Orders, every matter is different and there may be other options that are more appropriate in your circumstances.
Please contact Kerr Fels on (08) 6381 9080 to make an appointment for specific advice about your situation. The information in this article is of a general nature and should not be relied upon for your family law matter.
About KERR FELS – Divorce and Family Lawyers
Kerr Fels is a boutique law firm practising exclusively in family and divorce law. We offer experience in settling complex financial matters arising from separation involving business entities, trusts and large asset pools, in addition to negotiating simple divorces. We are conveniently located in the Perth CBD.
Our philosophy is to provide client-focused cost effective, efficient and pragmatic legal advice. Don’t hesitate to contact us if you need advice about separation or divorce.
P: (08) 6381 9080
A: Level 26, AMP Tower, 140 St Georges Terrace, Perth, WA.