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    Consent Orders in Australia: Everything You Need to Know 1024 664 Dorter

    Consent Orders in Australia: Everything You Need to Know

    Separation or divorce can be a stressful and emotionally challenging experience for couples, especially when they have to make decisions about property division and parenting arrangements. One way to formalise these agreements and make them legally binding is through a consent order.

    Consent orders are a legal tool that separated couples can use to protect themselves and their families. This article will answer some common questions about consent orders in Australia, including how to obtain them, what they can be used for, and their advantages and limitations.

    What is a Consent Order?

    When a couple separates, they must make decisions about property and parenting arrangements. These decisions can be made privately between the parties by agreement, or through the court. Informal agreements are not legally binding, which means that the parties may have no legal recourse if one of them does not comply with the agreement or changes their mind later.

    A consent order is a legal document that formalises the agreement reached between the parties. This makes the agreement legally binding, meaning that both parties have legal protection if either of them does not comply with the terms of the agreement.

    What Are Consent Orders For?

    Consent orders can be made for parenting and property settlement matters, which are typically the most common issues that separated couples need to resolve.

    Parenting arrangements can include custody, access or ‘time with’ arrangements, and communication, while property settlement consent orders can cover the division of assets, such as real estate, investments, and personal property, as well as superannuation and spousal maintenance.

    It’s important to note that consent orders can only be made for matters falling under the jurisdiction of the Family Law legislation. Consent Orders require the approval of the Court before the agreement is enforceable as an Order. The Court requires that the agreement reached between the parties is fair and equitable (in accordance with the legislation and case law) before approving a consent order.

    Other legal matters, such as child support or divorce, require separate applications, and seeking legal advice from an expert family lawyer can ensure that your rights and interests are protected.

    How to Obtain a Consent Order

    Here are the step-by-step instructions for obtaining a consent order in Australia:

    1. Reach an agreement: Before applying for a consent order, the parties must first reach an agreement on certain issues. This can be done through negotiation, mediation, or other dispute-resolution methods.
    2. Prepare the application: Once an agreement is reached, the parties must prepare an Application for Consent Orders. This application includes proposed consent orders, being the terms of the agreement, and supporting information that are required by the Court to assess the reasonableness of the agreement.
    3. Lodge the application: The application must be lodged with the Federal Circuit and Family Court of Australia. The Court will then review the application and assess the agreement to ensure that it is fair and equitable.
    4. Decision by Court: If the Court is satisfied with the agreement, the Court will generally make the consent orders.
    5. Receive the order: Once the consent orders are made, both parties will receive a copy of the orders. The orders become legally binding and enforceable at this time.

    The process of obtaining a consent order normally takes a few weeks and in some rare cases months, depending on the complexity of the agreement and the Court’s workload.

    Can an Application for a Consent Order be Rejected?

    In some cases, the Court may reject an application for consent orders. This could happen if the agreement reached between the parties is not deemed fair or reasonable, or if it’s not in the best interests of any children involved. Additionally, if the documents filed are incomplete or incorrect, the court may reject or requisition the application.

    If an application is rejected, parties can work to revise the agreement and re-apply for a consent order. However, it’s always best to ensure that the agreement reached is fair and reasonable before submitting an application to the court. Seeking the advice of a family law professional can help ensure that the application is submitted correctly, increase the likelihood of its approval, and reduce the risk of any delay.

    Does a Consent Order Expire?

    A consent order does not have an expiry date, which means it remains legally enforceable until it is varied or set aside by the Court. However, it’s important to note that there are limited circumstances in which a consent order can be altered or set aside. Some examples include if there has been a significant change in circumstances, fraud, or duress.

    . If you believe there has been a significant change in circumstances, fraud, duress, or some other reason that warrants a variation or termination of a consent order, you should seek legal advice.

    What Happens if a Consent Order is Breached?

    If a party breaches a consent order, the other party can take legal action to enforce the order. Breaching a consent order can result in serious legal consequences such as fines, or other penalties. In extreme cases, a person found to have breached an Order can be ordered to serve a term of imprisonment.

    If you suspect that a consent order has been breached, you should seek legal advice immediately to determine the best course of action. In some cases, it may be appropriate to negotiate with the other party to resolve the issue. In other cases, legal action may be necessary to enforce the order or seek compensation for any losses incurred.

    If there are changes in circumstances that make it difficult for you to comply with the terms of the consent order, it’s highly recommended that you seek legal advice before applying to make any changes to the order or breaching the Order. This can prevent potential legal consequences and ensure that the agreement remains fair and reasonable for all parties involved.

    How Can a Lawyer Help with Consent Orders?

    Applying for consent orders can be a complex and sometimes daunting process. Seeking the help of an expert family lawyer can ensure that the process is as smooth as possible. A family lawyer can offer legal advice on the agreement, ensuring that it is fair and equitable, and help clients to understand their legal rights and obligations.

    Lawyers can also assist in the preparation of the necessary documents and filing of the application with the Court. They can communicate with the Court on behalf of their client, and if needed, represent their client in Court proceedings.

    In addition, if a consent order has been breached, a lawyer can advise on the available legal remedies and represent their client in court proceedings to enforce the order or seek variations. A lawyer can also assist in negotiating a new agreement or variation to a consent order.

    Consent Orders: Move Forward with Confidence

    Separation and divorce can be emotionally challenging, but consent orders provide a practical and beneficial way for parties to reach agreements on parenting and property settlement matters. Although obtaining a consent order is not mandatory in Australia, it is strongly recommended because it offers legal protection and enforceability of the terms of the agreement, providing peace of mind for both parties.

    In addition to offering legal protection, seeking legal advice can help ensure that the agreement is fair and reasonable, and that the necessary paperwork is correctly prepared and submitted, and will be approved by the Court. With the assistance of a family lawyer, clients can navigate the process of applying for a consent order and move forward with confidence.

    Ultimately, consent orders provide a useful tool for resolving disputes in separation and divorce. By obtaining consent orders, parties can ensure that their agreement is legally binding and enforceable, providing them with greater certainty and security for the future.

    If you need legal advice regarding an agreement with a former partner, you can contact us at Dorter Family Lawyers & Mediators. Our firm is well-versed in negotiating and preparing consent orders and various agreements that may need to be made as part of a separation.

    Call us today on 02 9929 8840 or book a consultation online here.

    Declaration of Nullity and Divorce 800 533 Dorter

    Declaration of Nullity and Divorce

    “Is a Declaration of Nullity the Same as a Divorce?”

    After married couples have been separated for a period of twelve (12) months they may wish to apply to the Family Court or the Federal Circuit Court for Divorce. Some clients, however, ask if they can obtain a Nullity rather than a Divorce order.

    What is a Nullity?

    A Declaration of Nullity is a finding by the Family Court of Australia that, although a marriage ceremony may have taken place, the marriage between the parties is void and not legal. As a result, the outcome is that the parties to the void marriage do not become divorced, but rather it is as though they were never married in the first place. This is also known as a marriage annulment.

    How to Declare Nullity

    The Court is able to make such a declaration in accordance with the Family Law Act however, there are very specific grounds upon which a Declaration of Nullity may be sought. A Declaration of Nullity may be made on the following grounds:

    1. At the time of the parties’ marriage, one of the parties remained married to someone else (a previous relationship where no divorce occurred);
    2. The parties are in a prohibited relationship;
    3. The parties did not comply with the laws of the marriage in the country they were married;
    4. Either party was not of a legal age to marry and did not hold the relevant approvals; or
    5. Either of the parties did not give their real consent to the marriage because:-
      • consent was obtained by duress or fraud;
      • one party was mistaken as to the identity of who they were marrying or the nature of the ceremony; or
      • one party was mentally incapable of understanding the nature and the effect of the marriage ceremony.

    When do you want to seek a Declaration of ‘Nullity’ and not a ‘Divorce’?

    The purpose of a Declaration of Nullity is to find a marriage “void”, meaning “of no effect”. The primary reason a Declaration of Nullity is sought is when one of the parties is already married. This is often the case when:

    1. A party is unaware that their previous marriage was formally registered; or
    2. A party is unaware that no Divorce Order has been granted in relation to their earlier marriage.

    A recent Family Court Decision dealt with this issue whereby an Application for Nullity was sought. In this case, the Wife had not obtained a Divorce Order from her previous Husband. The Wife had been separated from her former Husband for approximately 12 years prior to the second marriage, however, she was not aware that a Divorce Order had not been granted from her first marriage.

    In this matter, there were three (3) steps that needed to be completed: –

    1. Apply to the Family Court for a Declaration of Nullity;
    2. Obtain a divorce from her first Husband; and
    3. Legally re-marry.

    When is a Marriage Recognised?

    The ­­­­­­­­­­­­­­­­­­­­Marriage Act 1961, defines marriage as “The union of 2 people to the exclusion of all others, voluntarily entered into for life.”

    The criteria to be legally married in Australia, requires that you must: –

    1. Not be married to another person;
    2. Not be marrying a parent, grandparent, child, grandchild, brother, or sister;
    3. Be at least 18 years old, unless a court has approved a marriage where one party is aged between 16 and 18 years old;
    4. Understand what marriage means and freely consent to becoming husband and wife;
    5. Use specific words during the ceremony; and
    6. Give written notice of the intention to marry to their authorised celebrant, within the required time frame.

    If you would like any assistance with the above, Dorter Family Lawyers and Mediators are expert family lawyers who specialise in all areas of family law and can assist. Please contact us on (02) 99298840.

    Luke Meehan

    Rebekah Dorter

    This post is an overview only and should not be considered as legal advice.  If there are any matters that you would like us to advise you on, then please contact us.