Separations are a painful experience for both parties. Even though you can't divorce for at least twelve months, that doesn't mean you can't start taking positive action to protect your future. Here’s what you need to know about consent orders.
What Is A Consent Order?
When you separate from your spouse you will need to agree on how to divide your financial assets and how to care for your children. A consent order is the understanding that both parties agree to and then file with the Family Court of Australia. The Court will then seal this to make the document legally binding. It has the same effect as an Order from the judge. The benefit of the consent order is that it is agreed between the two parties and neither of you has to deal with the stress or expense of going through the court process. It's an ideal and effective method to close your financial ties with an ex-partner as it will allow you to move forward quickly and independently.
It is not a legal requirement to make a consent order following separation. Many couples instead choose to make an informal agreement with their former partner. While this is a reasonable choice, either party could change their mind and apply to the Court for something else entirely. A consent order is the safest way to handle the Property Settlement Process. It ensures that the property pool is divided legally and as such no party, except under extreme circumstances, can attempt to change it after it has been sealed by the Court.
Do You Have To Be Divorced To Arrange A Consent Order?
No, you can pursue a consent order as soon as you separate. The sooner the better as there is a time limit on when these can be filed.
Do You Need To Go To Court To Implement A Consent Order?
The consent order must be filed with the Family Court of Australia and sealed by a judge to be legally binding. However, you do not need to go through the entire court process that others do to come to an agreement as you have done so with the other party.
Unless you cannot agree on the order, you do not need the Court to be involved until the point of filing. There is a kit available for you to handle the consent order yourself, however, involving a lawyer is the wisest possible move. A solicitor has the knowledge and expertise to ensure you are making the best possible moves to protect both your future as well as your children's. Solicitors know how to get the job done.
A consent order can cover arrangements for child care as well as address financial matters.
A children's order can cover who and where the children spend their time with and when, who holds the responsibility for the children, whether children are allowed to travel overseas with or without permission of the other parent, the time and place for care changeovers, as well as expectations of parental behaviour.
A financial order can cover who keeps the other, who retains what assets, any superannuation that is to be shared, and how debts are resolved.
A children's order is ongoing, but a financial order typically has a finalisation point to ensure ties are severed between the two parties.
How Are Consent Orders Different From A Parenting Plan?
A parenting plan is an informal written agreement between two parties that covers all parenting arrangements but does not require Court approval. Provided the plan clearly sets out each parent's rights and obligations and is signed and dated by all concerned parties it is deemed sufficient. The issue, however, is if either party acts against the parenting plan it cannot be pursued in Court because it is not enforceable.
A consent order requires Court approval, but a parenting plan does not. There is no fee with a parenting plan unless you enlist the services of a solicitor or mediator to draft it. There is a fee to filing a consent order with the Family Court of Australia. A parenting plan is not legally enforceable, but a consent order is.
What Happens If One Party Does Not Agree To The Consent Order?
By its very definition, a consent order is agreed upon by both parties. However, you do have options if you are struggling to reach an agreement.
If you aren't too far off each other's expectations, then further discussions may be worth pursuing. One of you might just need a bit more time to process the situation.
If you are further apart in expectations, then negotiating with the help of outside assistance might be necessary. You can either hire a mediator or work with a solicitor. Just because it seems a ways off now doesn't mean outside help can't help you reach an agreement.
Take It To Court
If one party refuses to negotiate in good faith or you're simply too far apart in expectations then you may need to take it to the Family Court of Australia. Couples going through a separation are bound to disagree, often emotions are still tender, but the Court should be seen as the last resort.
No matter which approach you decide to make, a solicitor skilled in family law property settlement can help.
Do Time Limits Apply?
Yes. As per the Family Law Act, there is a property settlement time limit. You have twelve months from your final divorce order to file the court application for a division of property. There is a two-year time limit for de facto couples. It may be possible to file after the time limit, you should consult a solicitor if this applies to you. Addressing property settlement after separation will ensure you meet deadlines and do not miss out. Divorce property settlement must be done so why wait?
Why You Should Seek Legal Help
Navigating the legal system can be a time-consuming, complicated process so why wouldn't you enlist the services of a professional to take care of it for you? At AJB Stevens, we can help you understand your responsibilities and legal rights. If you would like to discuss your situation further, please contact us today.