Property Settlement Consent Orders After Separation

Property Settlement Consent Orders involve making an application to the Federal Circuit and Family Court of Australia for financial orders to formalise an agreement reached between parties following the end of their relationship.

Consent Orders legally sever the financial relationship between married or de facto parties without the uncertainty and costs of a Court trial.

Time Limits

Pursuant to the Family Law Act 1975 (Cth) (‘the Act’), specific time limits apply, being:

Married couples must make an application for Consent Orders within 12 months of their divorce becoming final.
De Facto couples must make an application for Consent Orders within 2 years from the date of separation.

In certain circumstances, out-of-time applications may be permitted by the Court.

What Happens If You Do Nothing?

If property settlement arrangements are not formally finalised, the financial relationship between the parties remains legally open.

This means either party may still bring a property settlement claim in the future, provided they are within the applicable time limits under the Act or are granted permission by the Court to proceed out-of-time. This can occur even where parties believe matters were resolved informally following separation.

Failing to formalise property settlement can also create practical issues, including:

difficulties refinancing or selling jointly owned property;
uncertainty around superannuation entitlements; and
complications if one party remarries, enters a new de facto relationship, or passes away.

Court Considerations

Reaching an agreement for property settlement requires parties to provide their full and frank disclosure of documents relevant to the matter.

Disclosure from both parties is required to determine and consider the following:

The parties’ global asset pool.
The parties’ financial and non-financial contributions.
The future needs of the parties.
Whether the agreement reached between the parties is just and equitable.

Typical Timeframes for Consent Orders

The timeframe for finalising property settlement Consent Orders will depend on the circumstances of each matter, including how quickly parties can exchange financial information and reach an agreement.

Generally:

Preparation of Consent Orders may take several weeks once full financial disclosure has been provided and agreement has been reached.
Court processing times usually range from a few weeks to a few months, depending on the Court’s workload at the time of filing.
Once approved, Consent Orders take effect immediately and must be complied with within the timeframes set out in the Orders.

While Consent Orders can avoid the delays associated with contested proceedings, allowing sufficient time for proper drafting and review is important to ensure the Orders are capable of approval by the Court.

Binding on Both Parties

Once the Consent Orders have been reviewed and approved by the Court, they are binding on both parties and require the execution of the Orders within a specified timeframe.

In circumstances where one party does not comply with the Orders, the Orders can be enforced or even altered by the Court.