Are Consent Orders Legally Binding?
In short, Consent Orders, alongside any other orders made by a Court, are legally binding on the parties to the proceedings (e.g., ex-partners).
This is the main advantage of ex-partners applying for Consent Orders following separation.
The Court’s involvement in making Consent Orders results in a legally binding agreement that both parties must comply with.
If either party breaches the terms of the Consent Orders, the other party will be able to seek a remedy from the Court, including enforcement of the orders.
In family law matters, the Court will only make orders that it deems just and equitable in all circumstances, meaning that proposed Consent Orders will be assessed by the Court before they are made.
Because of this, there are only limited reasons why orders can later be set aside.
Consent Orders for Property Division
It is more or less always the case that parties to a marriage (or de facto relationship) have experienced significant changes in their financial position, especially in longer relationships.
If your marriage ends, you may be entitled to a percentage division of the available property pool.
In circumstances where you and your spouse (or former de facto partner) are amicable, you may be able to achieve a division of the property pool by agreement, which you can then formalise by way of an Application for Consent Orders to the Federal Circuit and Family Court of Australia.
The Family Law Act 1975 (Cth) (‘the Act’) deals with financial matters relating to marriages and de facto relationships.
The Court is empowered to deal with and alter the parties’ respective interests in the property of the relationship, including but not limited to transferring ownership of an asset between the parties, or directing that an asset be sold.
‘Property’ is more broadly defined in these circumstances than simply referring to real estate holdings, and includes all assets, liabilities, financial resources and superannuation interests in the joint or sole names of the parties.
In property settlement proceedings after the breakdown of a relationship, the Court can make such orders as it considers appropriate altering the interest of the parties in the property.
In making an Application for Consent Orders, both parties must provide details of all current assets and liabilities, including the values of each bank account, real property and associated mortgages, motor vehicles, household effects, and so on.
This is part of the requirements to satisfy the Court that the agreement is fair.
A failure to provide full disclosure of all ‘property’ in your name or control may give rise to any orders made by the Court being set aside or overturned at a later time.
The Application for Consent Orders will then be considered by the Court and will become legally binding on the parties if the orders are made.
Does the Court have to be involved?
Whilst there are significant benefits to orders made by consent, it is not the only option available to the parties to finalise their property settlement and sever their financial ties.
Binding Financial Agreements allow the parties to a relationship to avoid the requirement to involve the Court.
Binding Financial Agreements vs Consent Orders
There is arguably a greater degree of flexibility in what you might achieve with a Binding Financial Agreement, noting that a Binding Financial Agreement can be entered into before marriage (prenup), during the marriage (postnup), or after separation or divorce.
In the event of divorce or separation, the terms of the Binding Financial Agreement may be enlivened, and offer each of the parties surety of the next steps for how their assets and other financial interests are to be dealt with.
It is important to note that the Act requires both parties to a Binding Financial Agreement to receive independent legal advice, to avoid coercion, control, fraud and mistake, and to ensure that each of the parties knows what impact the agreement will have on their rights and entitlements.
Because of these stringent requirements, Binding Financial Agreements can become more costly than Consent Orders, and the agreements are more often challenged and/or set aside if these requirements are not met.
Other Options
Only an order of the Court (such as a consent order) or a properly prepared Binding Financial Agreement will formalise your agreement and prevent any later claims between the parties.
Other documents (e.g. a statutory declaration) are not binding or enforceable, even if signed by the parties.
it is always best to seek advice from a specialist family lawyer after the breakdown of a relationship or marriage. We offer a free, no-obligation 15-min consultation for all enquiries.
You should also be aware that a lawyer, or law firm, can only ever assist and provide advice to one of the parties, to ensure that there is a degree of independence and so that there can be no conflict of interest.
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Related Blog – What is my Partner entitled to in a Divorce?
