Consent Orders in Family Law: Formalising Your Agreement After Separation

Following separation, many couples are able to reach agreement — either independently or with assistance — about parenting arrangements and the division of property.

When agreement has been achieved (or is close to being achieved), it is critical to consider how that agreement should be formalised. In most cases, Consent Orders are the most effective and secure way to document and implement the terms of settlement.

What Are Consent Orders?

Consent Orders are written agreements that have been approved by the Federal Circuit and Family Court of Australia and formally sealed by the Court.

Although they reflect an agreement between the parties, once sealed, Consent Orders carry the same legal force and effect as orders made by a Judge after a contested hearing.

Consent Orders can address:

• Parenting matters (such as parental responsibility and time arrangements);

• Property and financial matters (including asset division, superannuation splitting and spousal maintenance); or

• Both parenting and property issues within the same application.

Because they are Court orders, they are legally binding and enforceable.

Why Choose Consent Orders Instead of an Informal Agreement?

While informal agreements or parenting plans may appear simpler, they do not provide the same legal protection or finality.

Consent Orders offer several key advantages:

• They are enforceable by the Court if one party fails to comply.

• They provide finality in property matters.

• They may provide significant taxation and stamp duty benefits.

• They reduce the risk of future disputes.

For property settlements in particular, formalisation through Consent Orders is often essential to protect both parties’ financial interests.

Financial and Tax Advantages of Consent Orders

One of the most significant benefits of Consent Orders relates to taxation and duty exemptions.

Stamp Duty on Property Transfers

If your property settlement involves transferring an interest in real estate (such as the former matrimonial home) from one party to the other, stamp duty would ordinarily be payable on that transfer.

However, where the transfer is made pursuant to properly drafted Consent Orders:

• Stamp duty exemptions generally apply.

Stamp duty can represent a substantial cost — often many thousands of dollars — and in many cases far exceeds the legal fees associated with preparing Consent Orders.

Capital Gains Tax (CGT) and Other Transfers

Consent Orders may also facilitate:

• Capital gains tax rollover relief on certain asset transfers;

• Exemptions from stamp duty on share transfers;

• Proper removal of a party from a trust structure;

• Transfer of shares in a private company without triggering unintended tax consequences.

The taxation implications of property settlements can be complex. Formalising arrangements through Consent Orders helps ensure compliance with relevant legislative requirements and access to available exemptions.

How Are Consent Orders Obtained?

To obtain Consent Orders, the parties must file an application with the Federal Circuit and Family Court of Australia.

The process involves preparing and filing:

1. Application for Consent Orders

This is a detailed document that sets out:

• Background information about the relationship;

• Details of any children;

• A comprehensive summary of assets, liabilities and financial resources (for property matters);

• Information relevant to the proposed arrangements.

2. Minutes of Consent Orders

This document contains the precise terms of the agreement — drafted in formal legal language — that the parties are asking the Court to make into binding orders.

The Court provides prescribed forms and templates, and strict requirements apply to the information that must be disclosed.

What Does the Court Consider?

A Registrar of the Court reviews the application and proposed orders.

The Court does not simply “rubber stamp” agreements. It must be satisfied that:

• In parenting matters, the proposed arrangements are in the best interests of the child; and

• In property matters, the proposed division is just and equitable under the Family Law Act 1975.

If satisfied, the Registrar will seal the orders. Once sealed, the Consent Orders become legally binding and final.

Filing Fees

A filing fee is payable when lodging an Application for Consent Orders. The amount is set by regulation and subject to periodic change. It is significantly lower than the fee payable for filing a Divorce Application.

Concession card holders may be eligible for a reduced fee or exemption.

Can You Apply Without a Lawyer?

It is possible to prepare and file Consent Orders without legal representation. However, caution is strongly advised.

The documentation:

• Requires comprehensive financial disclosure;

• Must comply with strict legislative drafting requirements;

• Must be sufficiently precise to be enforceable;

• Must properly address taxation and superannuation requirements;

• Must satisfy procedural fairness requirements for superannuation trustees (where applicable).

For example, superannuation splitting orders must:

• Refer to specific legislative provisions;

• Be served on the trustee of the relevant superannuation fund;

• Be drafted in a form the trustee can implement.

An incorrectly drafted order may be rejected by the trustee or prove unenforceable.

At a minimum, it is prudent to obtain independent legal advice regarding:

• Whether the proposed settlement is fair;

• Whether your rights are adequately protected;

• Whether the drafting meets the Court’s requirements.

What Happens After Orders Are Made?

Once sealed:

• The Consent Orders are final and binding.

• Either party may apply to the Court to enforce compliance if the other party breaches the orders.

Property Consent Orders can only be varied in very limited circumstances.

Parenting Consent Orders may be varied by:

• A further Consent Order;

• A subsequent Court order; or

• A Parenting Plan (to the extent it addresses specific matters and varies the orders accordingly).

However, informal variations without proper documentation can create uncertainty and risk.

Consent Orders vs Parenting Plans

A Parenting Plan is a written agreement signed and dated by the parties but not filed with or approved by the Court.

While Parenting Plans can be appropriate in certain circumstances, they:

• Are not directly enforceable;

• Do not provide the same level of legal certainty;

• Do not offer taxation or property transfer benefits.

Although Consent Orders require more detailed preparation, they provide greater security and finality.

Cost Considerations

There is necessarily some time and cost involved in preparing Consent Orders properly.

However, where agreement has already been reached, the process is typically straightforward and significantly less expensive than contested Court proceedings.

In most cases:

• The cost of formalising an agreement through Consent Orders is modest compared to the financial and legal risk of leaving matters undocumented.

• The stamp duty savings alone often justify the legal fees involved.

Where one party fails to provide disclosure or refuses to engage reasonably in negotiations, litigation may become necessary — and that process is considerably more costly and time-consuming.

Frequently Asked Questions About Consent Orders in Family Law

What are Consent Orders in Australia?

Consent Orders are agreements between separated parties that have been approved and sealed by the Family Court, making them legally binding.

Are Consent Orders enforceable?

Yes. If a party breaches Consent Orders, the Court can enforce compliance.

Do Consent Orders provide stamp duty exemptions?

Yes. Property transfers made pursuant to Consent Orders are generally exempt from stamp duty.

Can we prepare Consent Orders without a lawyer?

It is possible, but legal advice is strongly recommended to ensure compliance with drafting requirements and to protect your interests.

Can Consent Orders be changed later?

Property Consent Orders are final except in limited circumstances. Parenting Consent Orders may be varied by further order or parenting plan.

Final Remarks

If you have reached agreement following separation, formalising that agreement through Consent Orders is generally the most secure and commercially sensible course.

Properly drafted and approved orders:

• Provide enforceability;

• Deliver taxation and duty benefits;

• Ensure compliance with legislative requirements;

• Reduce the likelihood of future disputes; and

• Provide clarity and finality moving forward.

Obtaining tailored legal advice at this stage is a prudent investment in your long-term financial and personal stability.

At Sarinas Legal, we provide strategic and commercially focused advice in all areas of family law, including parenting arrangements, property settlements and complex financial matters.

If you require tailored advice regarding your circumstances, we recommend obtaining independent legal guidance at an early stage to ensure your interests are properly protected.