Consent Orders 101: Everything You Need to Know
When it comes to family law, one of the most common ways for couples to finalise their separation is through consent orders. These legal agreements are used to settle disputes and formalise agreements between parties without the need for a court trial.
In this blog post, we will discuss everything you need to know about consent orders in Queensland family law, including what they are, the process for obtaining them, and their legal implications.
What are Consent Orders?
Consent orders are legal agreements that are made between parties in a family law dispute. These agreements are used to settle issues such as property division, child custody and support, and spousal maintenance. Once the consent orders are made, they are binding and enforceable by the court.
In Queensland, the legal framework for a consent order is provided by the Family Law Act 1975. This act sets out the requirements for obtaining an order, including the terms that can be included in the orders and the process for applying to the court. It also outlines the legal implications of consent orders, including the enforceability of the orders and the ability for the court to vary or set aside the orders in certain circumstances.
The Process for Obtaining Consent Orders
The process for obtaining consent orders in Queensland begins with the parties reaching an agreement on the terms of the order. This agreement can be reached through mediation, negotiation, or the collaborative law process. Once the agreement has been reached, the parties can then apply to the court for the consent orders to be made.
The application for a consent order must be made in writing and include the terms of the agreement, as well as a statement that the parties have voluntarily entered into the agreement. The application must also be accompanied by an affidavit from each party, which sets out the details of the agreement and confirms that the parties have entered into the agreement freely and without duress.
Once the application has been filed, the court will review the agreement to ensure that it is fair and reasonable. If the court is satisfied that the agreement is fair and reasonable, it will make the consent orders. The consent orders will then be binding and enforceable by the court.
When Can You Apply for a Consent Order?
In Queensland, you can apply for consent orders at any time after the parties have separated. There are no specific time limits for applying for an order, and they can be made at any stage of the family law process. You can still be living under the same roof, provided that you are no longer living together as partners. This means it is possible to apply for Consent Orders the day after separation occurs, whereas 12 months must pass for you to be able to file for divorce.
If you and the other parent agree about parenting matters, rather than apply for consent orders, you may wish to create a parenting plan instead. A parenting plan is a less formal way of agreeing in writing about how you will look after your children. You can write this plan up between you and the other parent, without the need for an official form or filing with the court, as long as there is no coercion, the agreement is clear, and both parties sign the document. You can also enlist the help of a friend, counsellor, or lawyer for help.
Additionally, it's recommended that before applying for consent orders, parties should try to reach an agreement on the terms of the order through mediation, negotiation, or the collaborative law process. And once the agreement has been reached, the parties should seek legal advice to ensure that the agreement is fair and reasonable, and that the consent orders will be binding and enforceable by the court.
Does a Consent Order Cover Everything?
Consent orders can be used to formalise most concerns after a separation, such as spousal maintenance and property settlement, as well as parenting arrangements, however, a consent order cannot make agreements for child support.
What Are the Legal Implications of Consent Orders?
Consent orders have several legal implications that parties should be aware of before entering into them. One of the most significant implications is that the consent orders are binding and enforceable by the court.
Another important implication is that consent orders can be varied or set aside by the court in certain circumstances. This includes where there has been a change in circumstances, or where a party has not fully disclosed their financial position.
It is also important to note that consent orders can be made in relation to property division and spousal maintenance, but not in relation to child support. Child support matters must be dealt with separately under the Child Support (Assessment) Act 1989.
What Are the Benefits of Obtaining a Consent Order?
Obtaining a consent order provides many benefits to separating spouses & parties:
- Formalises Agreements: Consent orders provide a legally binding and enforceable agreement, which formalises the terms of the agreement and ensures that the parties are held to their commitments.
- Avoids Court: Obtaining a consent order allows the parties to settle their dispute without the need for a court trial, which can be costly and time-consuming.
- Provides Certainty and Closure: Consent orders provide certainty and closure, as they set out the terms of the agreement and the rights and obligations of the parties. This can help minimise stress and potential upheaval, allowing the parties move on with their lives feeling secure in the arrangements they’ve made for their future.
- Flexibility: Consent orders can be tailored to the specific circumstances of the parties, and can be varied or set aside by the court in certain circumstances, such as a change in circumstances or non-disclosure of a party's financial position.
- Cost-Effectiveness: Consent orders are typically a cost-effective way to resolve disputes. It negates the need for a trial, and usually results in fewer legal costs.
- Control: Obtaining a consent order allows the parties to have control over the terms of the agreement, rather than leaving it to a judge to decide.
What Are the Penalties if a Consent Order is Breached?
If a party breaches a consent order, the other party can apply to the court for enforcement. Depending on the specific circumstances of the breach, the court may impose various penalties.
Some of the potential penalties include:
- Monetary penalties: The court may order the party who breached the consent order to pay a sum of money to the other party as compensation for the breach.
- Injunctions: The court may issue an injunction ordering the party who breached the consent order to do or refrain from doing a specific act. For example, an injunction may be issued to prevent a party from disposing of or dealing with property that is subject to the consent order.
- Contempt of court: If a party knowingly and wilfully breaches a consent order, they may be found in contempt of court. This can result in a fine or imprisonment, or both.
- Variation or set aside of the order: The court may also vary or set aside the consent order if the party who breached the order can demonstrate a change of circumstances or non-disclosure of their financial position
Need Some Help with a Consent Order?
Consent orders are a common and effective way for parting spouses to finalize their separation in Queensland family law outside of the courts. They provide a legally binding and enforceable agreement that can settle disputes and formalise agreements. If you are considering applying for consent orders, it is important to understand the process, legal implications and to seek legal advice. At Pullos Lawyers, we have a wealth of experience helping families find positive solutions to sensitive legal issues, and can assist with filing a consent order and all parenting matters. We specialise in a number of family law issues including divorce law, child support and co-parenting, and provide both in-court and out-of-court solutions. To speak to us, please contact our team at Pullos Lawyers at our Gold Coast office on (07) 5526 3646 or our Brisbane office on (07) 3144 1641.