WHAT ARE CONSENT ORDERS?
Consent Orders are a collection of documents lodged with the court that turns the agreement you have with your partner into final court orders. Consent orders make your agreement legally binding.
The agreement could be in relation to parenting such as for example who the child lives with, who the child spends time with, limitations on travel and other children's issues.
It can also deal with property and financial matters such as how assets are to be divided, spousal maintenance, and how superannuation is divided (called super split).
Consent orders, once approved, have the same effect as if a judge made those orders at trial.
WHEN ARE CONSENT ORDERS USED?
Consent Orders are used after you have separated and reached an agreement on some or all of these:
- Parenting, eg how time with your children is divided
- Property, eg how you divide the assets and debts of the relationship
- Spousal maintenance, e.g. one spouse paying some money to the other spouse.
You can make Consent Orders immediately after you have separated. There is no waiting period after separation.
The agreement that you reach with your former partner has solid foundations i.e you have discussed all the assets and liabilities that you have and both parties are clear as to what they will be keeping and what they will be responsible for.
WHAT DO WE NEED FROM YOU?
If the above sounds like your situation, you may find that consent orders are the most appropriate route for you and your situation…
This is when we invite you in for an initial consultation.
At the consultation, we will work with you to understand the agreement that you have with your ex-partner i.e who the children will live with, what finances and assets will be divided, who is keeping what, will someone take over the mortgage? Will there be cash payments?
We also help you think about the finer details or mention things that may have been missed which need agreement.
Remember: Your agreement is not legally binding at this point.
HOW TO FINALISE THE AGREEMENT?
This is where Consent Orders come in. How can we help?
After understanding your agreement, we draft your consent orders documents in terms of the agreement that you have reached.
We offer fixed fee packages to draft your consent orders documents so that you know what your costs will be. Contact us to discuss our fixed fee packages.
What Happens Once The Documents Are Drafted?
Once the documents are drafted, they will need to be signed by you and your former partner in the presence of an authorised witness.
Once the documents are signed by both parties, they will need to be lodged with the Family Court.
Once lodged, the Family Court will allocate a Consent Orders hearing. The parties do not need to attend the hearing. At the hearing, a judicial officer will review your Consent Orders and if satisfied, make the orders you have proposed to the court.
If orders are made, the clock starts ticking on the obligations under the orders i.e. refinancing and transferring the family home, closing joint accounts, transferring cars etc.
BENEFITS OF CONSENT ORDERS
Without having a formalised agreement, your former partner may go back on any agreement which you have.
For property and financial matters, your former partner has 12 months after divorce if you are married, or 2 years after separation if you are de-facto, to make a property settlement claim. If nothing is finalised, you are leaving yourself open to having proceedings commenced against you out of the blue. This is particularly the case for married couples who separate but then do not worry about formally getting divorce.
Also, without finalising your agreement and legally untying yourself from your former partner, you may still be liable for a joint mortgage, debt or bills after you have separated if your former partner does not uphold the agreement. This could result in you losing thousands of dollars repaying these liabilities, you having to spend thousands of dollars on legal fees to sort it out and your credit score being negatively affected.
By doing Consent Orders, you have the benefit of:
- The obligations under the orders legally binding;
- The orders are legally enforced - if your ex-partner goes against anything in the order, you can enforce them;
- Subject to exceptions, the orders are difficult to have changed or overturned. This gives you a high level of certainty.
- Nominal stamp duty is payable on transfers of property
What Does The Court Look For?
This depends on whether you have made consent orders about property settlement or children’s arrangements.
The court will look at your proposed property split and determine if it is ‘just and equitable’. How this will be determined is based on what’s known as a ‘four stage process’. This process involves:
FOR PROPERTY CONSENT ORDERS
Determining the net asset pool
This step includes tallying up all of the assets of the relationship and subtracting the total amount of liabilities of the relationship.
Determining each party’s contributions
This step includes looking at each person’s contributions to the relationship. These contributions include:
- Initial Contributions- contributions at the commencement of cohabitation;
- Contributions during the relationship; and
- Contributions since the date of separation.
There are three different types of contributions that will be considered by the court. These are:
- Financial Contributions- Financial contributions can include lump sum payments, for example paying the deposit on a house, and ongoing payments such as home loan repayments, utility bills and groceries
- Home Maker and Parent Contributions – this means raising children under 18 and doing various homemaker tasks such as cooking, cleaning, washing and gardening;
- Non-Financial Contributions – this means contributions that are neither financial nor home maker/ parenting contributions- typically includes things like undertaking renovations, improvements, or working in a family business for no pay.
Determining each person’s future needs.
This step looks at what each party’s likely future needs are. This can include factors such as:
- a person’s age and health;
- a person’s income, earning capacity and financial resources
- care of children under 18
- whether a person is receiving child support
If one party has greater future needs than the other, they will get a percentage adjustment in their favour. For example, a percentage division of net assets based on the parties’ contributions might be 50/50. However, the wife may then get a 10% adjustment in her favour because she has greater future needs than the husband. This would result in a final percentage division of net assets of 60/40 in favour of the wife.
The fourth and final step is to make sure that the proposed percentage division of net assets is just and equitable.
This is because the Family Court has a duty to make property and financial orders that are just and equitable. Get in touch with our team of family lawyers to find out what a just and equitable split might look like in your circumstances.
What Is A Super Split?
Superannuation splitting is the legal term for dividing superannuation between super accounts after a relationship breakdown.
For example, Matt has $100,000 in his super account. His Wife, Ann has $50,000. If Matt and Ann decide to do a super split, funds are transferred from Matt’s super fund to Ann’s super fund. For example Matt can transfer $20,000 to Ann’s account. If a super split occurs, Matt’s super fund will directly transfer the $20,000 to Ann’s fund.
The transfer is between super funds. Money is not directly paid to Ann. After the transfer occurs, normal super rules apply as to when you can access it (eg at retirement age or financial hardship etc).
Married couples can do a super split all around Australia.
In every state in Australia, except WA, de facto couples are able to divide their super.
In Western Australia, de facto couples cannot divide their super (however super is taken into account as a financial resource) when deciding what is a fair division of the assets. This means if for example, if someone has more super, they may get less of the other assets.
Super splits are included in property consent orders. The super fund will need to have notice of the split before the consent orders are filed with the court.
For Children’s Arrangements
The Family Court’s paramount consideration when determining parenting arrangements for children under 18 is the best interests of the child.
When determining this, the court will look at two primary considerations, and a long list of additional considerations.
- The benefit to the child of having a meaningful relationship with both parents; and
- The need to protect the child from physical or psychological harm from being subjected or exposed to child abuse, neglect or family violence.
Additional considerations include things like: a child’s views, the extent to which a parent has taken the opportunity to spend time with the child, the extent to which a parent has fulfilled their obligations to maintain the child, and the capacity of a parent to provide for the child’s emotional and intellectual needs.
WHAT CAN I INCLUDE IN MY CONSENT ORDERS?
In your consent orders, you can include orders about your property split and parenting arrangements.
WHAT CAN’T I INCLUDE IN MY CONSENT ORDERS?
Your consent orders cannot include orders about child support. This must be organised through the Department of Human Services, or through a different kind of agreement called a child support agreement.
Get in touch with our family lawyers for more information about child support agreements.
To draft your Consent Orders, it will usually take us about 4 to 6 weeks to have finalised documents (i.e documents which you approve).
If you have a superannuation split, the draft documents will also need approval by the super fund.
Once the documents have been approved, they will be lodged with the Family Court.
Usually it takes 6 to 7 weeks to get a Consent Orders hearing listed by the Family Court. You will not need to attend this hearing.
All together, the process can take approximately 3 to 5 months. This does not include the time after the orders are made in terms of the action obligations under the orders i.e. refinancing and transferring the family home, closing joint accounts, transferring cars etc.
WHAT HAPPENS IF MY PARTNER AND I CANNOT COME TO AN AGREEMENT?
If you cannot come to a financial agreement with your partner, the best option is usually to go through dispute resolution. The main dispute resolution methods are negotiation and mediation, with arbitration and counselling being less commonly used. These methods can be helpful in assisting you reach an agreement. In fact, it is required that you attempt dispute resolution before you go to court, unless you are exempt because of exceptional circumstances such as fraud, urgency or family violence.
It is up to you and your partner which form of dispute resolution you wish to utilise. If dispute resolution is successful and you come to an agreement, you can either convert this into an informal agreement, consent orders or a binding financial agreement.
WHAT HAPPENS IF WE ATTEMPT DISPUTE RESOLUTION AND STILL CANNOT COME TO AN AGREEMENT?
If all other options have been exhausted and an agreement still can’t be reached, then the last resort is to take your case to the Family Court of Western Australia and to let the court to decide your property division for you. It is possible to represent yourself in court, but legal advice is certainly recommended.
WHEN SHOULD I GET LEGAL ADVICE?
We highly recommend getting legal advice from our team of experienced family lawyers as early as possible. This is important for the following reasons:
- We will help you understand your legal rights and entitlements in regard to both your children and property matters. This will arm you with important information to aid you in coming to an agreement with your partner.
- We will help you understand the next steps involved in the process, including the various avenues in and outside of the Family Court.
Our family lawyers are here to help you
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.