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What are consent orders?
Consent orders are a legal document that makes an agreement between you and another party legally binding. In Family Court proceedings, the ‘other party’ is typically your ex-partner.
You can use consent orders to formalise any agreement you and your ex-partner come to about your parenting arrangements of your assets. Doing so minimises the risk of misunderstandings or one-sided attempts to change the agreement – since you have both agreed to the terms in advance and the court has made the agreement legally enforceable.
Time limits on consent orders in Family Court proceedings
You will need to apply for consent orders within 1 year of getting a divorce or 2 years after the end of your de facto relationship. Remember, you need to be separated for one year before you can apply for a divorce so this period of time is comparable.
What types of NSW Family Law proceedings use consent orders?
Property Consent Orders
These generally involve financial arrangements between spouses or property shared between the spouses.
Specifically, the order may include:
- How matrimonial property is divided
- How financial responsibilities will be shared in the future
- Splitting superannuation.
Parenting Consent Orders
Before a court will enforce a consent order regarding a parenting arrangement, they must be certain that the order is in the best interest of the child.
Parenting orders may include:
- Details about who the child lives with or spends time with
- When the child sees each parent
- Parental responsibilities
- Anything else to do with the welfare or development of the child.
Typically parents create a consent order to legally avoid problems that may otherwise arise following family separation.
Family courts are able to remove, modify, or create new parenting orders if need be, but the outcome must still aim to meet the needs of the child in the most effective way.
Are consent orders legally binding?
Yes.
Filing consent orders with the court is the only way to ensure that your agreement is binding.
Other agreements, including making a verbal promise, signing a contract, or creating a statutory declaration, are not legally binding and cannot be enforced by the Court.
The process for getting consent orders
First of all, you and your ex-partner will need to reach an agreement.
Then, you need to write down that agreement in a way that’s clear, concise, and easy to understand. This is usually done using a numbered list with each number outlining one very specific part of your agreement – for instance:
- Who will have the children on which nights during a typical fortnight;
- The arrangements for children during holidays (rotating roster for Christmas and Easter, for example);
- Transferring ownership of a house or car to one party, pending payment of a certain amount of money; or
- Future arrangements for expenses relating to your children.
After the consent orders are prepared, you and your ex-partner will both need to sign them.
Finally, you’ll submit them to the Court for filing and the Court will process your application. This can take up to a few months, depending on how busy the Court is.
It is unlikely that you will ever have to attend court regarding this agreement unless it is breached down the line.
Do-it-yourself (DIY) Consent Orders for the Family Court
You can write and file your own consent orders in a family law matter in NSW.
The Family Court provides a template and some basic instructions for consent orders here.
Here’s what the Family Court recommends:
If you are seeking orders concerning children you should read and consider sections 60B, 60CA, 60CC, 61DA and 65DAA of the Family Law Act.
If you are seeking property orders in relation to a marriage, you should read and consider sections 75 and 79 and Part VIIIB of the Family Law Act.
If you are seeking financial orders as a party to a de facto relationship which has broken down, you should read and consider sections 90SK, 90SL, 90SM and Part VIIIAB of the Family Law Act.
If you are seeking spouse maintenance orders, you should read and consider sections 72, 74 and 75 of the Family Law Act.
If you are seeking de facto partner maintenance orders, you should read and consider sections 90SB, 90SD, 90SE and 90SF of the Family Law Act.
Getting an independent family lawyer to help with your case
The Family Court recommends that you get an independent family lawyer (that is, a lawyer who is NOT representing your ex-partner) to represent you in your family law matter.
Even if you and your ex-partner have agreed to the terms of your separation, it’s usually easier (and more effective) to have an experienced family lawyer draft consent orders for you.
The orders should be written in a way that comprehensively covers your situation if you want to minimise the risk of arguments over the agreement. Experienced family lawyers have written many of these agreements and know what to put in, what to leave out, and how to write it so it’s clear and easy to enforce.
Benefits of consent orders in the Family Court
Here are the top benefits of consent orders in the Family Court:
- Lower cost – getting consent orders tends to be less expensive than having the Court make a determination about orders on your behalf (if you can’t agree to the terms);
- They’re legally binding – so the court can step in to ensure that you and your ex-partner are both following the orders.
- Stamp-duty exemptions – if a property detailed in your consent order is transferred to you, your ex-partner, or your child(ren), you won’t need to pay stamp duty on the transfer. This can save you thousands of dollars.
How much does it cost to file consent orders in NSW?
In 2020, the Family Court charges a standard fee of $170 to file an application for consent orders. This amount does change from time to time, so check with your lawyer or visit the Family Court website to confirm the cost.
There are some exemptions to the payment of Court fees. If you and/or your ex-partner hold a concession card, are receiving Government benefits or Legal Aid, or you’re an inmate, you might be able to claim an exemption. Find out more here.
Legal Fees for Consent Orders in the Family Court
In addition to the Court fees, you should consider how much your lawyer will cost you.
The cost will vary from case to case. If you and your ex-partner separate amicably and agree to the terms of your separation and divorce, it will be significantly less expensive than if you argue over everything.
Free Consultation with an Experienced Family Lawyer at Altria Law
At Altria Law, we’ll assess your case for free. After you’ve received your case assessment, your first consultation with us is free too.
Our mission is to put the law on your side. And our lawyers are ready to guide you through your family law matter using language you’ll understand – not legal jargon.
Better still – we’ve taken action against exorbitant legal fees. We only charge you for the work you need – and nothing you don’t. You’ll see the value we bring to your case!
