A qualified solicitor can draft a consent order for divorced couples. Surely, couples will want to properly split their finances after separation or divorce. Couples with a solicitor can apply and draft a consent order to the Federal Circuit and Family Court of Australia (FCFOA). This article will discuss why it’s important to draft a consent order with a solicitor.
How Are Divorce And Separation Justified?
Before a couple and a solicitor can draft a consent order, the couple must show proof of their divorce. According to the Family Law Act 1975, the irretrievable breakdown of a marriage can prove a divorce. Also, a twelve-month separation can also support a divorce.
On the other hand, separation is the prerequisite of a divorce. Separation is frequently unclear among relationships as there may be chances for reconciliation. Hence, this can create confusion about where separation starts and ends.
Though, the Act recognises separation even if they live under the same roof. This is called cohabitation. For example, a 3-month separation can be integrated with a 4-month reconciliation. Still, if they break up again for 10 months, this can add up to a total of 17 months. This example is more than enough proof to apply for a divorce.
Draft Consent Order: What Are They Used For?
Following a divorce, the couple and the solicitor can draft a consent order for property settlement. The court will require a complete list of how to deal with property, financial resources, income, debts, liabilities, and superannuation.
Moreover, couples can also use consent orders for parenting and custody arrangements. Consent orders can dictate a parent’s responsibilities over their children. Couples have the following options in splitting their property, finances, and parenting matters:
1. Non-Legal Arrangements
It’s possible for couples to reach an agreement without having to go to costly court proceedings. Thus, they can properly agree in selling their property, dividing proceeds, and even parenting arrangements. This will generally work for couples who are confident and can reach amicable agreements in their relationship.
However, couples must remember that they have the right to go to Court at a later time and ask for financial orders. This may replace the original current agreements with a more legally binding one. While it’s nice that a divorced couple can agree with ease, the absence of legal arrangements can complicate things.
2. Binding Financial Agreements
A binding financial agreement is similar to a contract that sets out property division between couples. The Family Law Act allows married or de facto couples to enter into this agreement should their relationship break down. Furthermore, this agreement can be made anytime during a relationship and is often referred to as a prenuptial agreement.
This option is more enforced than a regular agreement and it also prevents either party from commencing court proceedings. Moreover, this agreement prevents courts from making different orders as they exclude the jurisdiction of courts.
However, these agreements are not as binding as consent orders. Consequently, there may be instances where courts can set them aside and make different orders. For example, a court can set aside a binding financial agreement if it was made with fraud. Another instance where this agreement can be set aside is if a couple decides to terminate the agreement.
3. Consent Orders
As the name suggests, a consent order is made with the consent of both parties. A registrar or solicitor can draft a legally binding consent order without any court hearings. Signing a draft consent order means couples agree with it and will comply with the orders. Draft consent order templates are available at the FCFOA’s website and are available in PDF, DOCX, and RTF format.
It’s the couple’s responsibility to provide necessary information to the court when they want to draft consent order. In limited circumstances, courts may have to set these orders aside and make new ones. This process may be lengthy and may require a solicitor’s legal advice.
This option will involve the court as they will make the decisions for the couple’s property and financial division. However, courts won’t draft a consent order unless it is just and equitable. Couples should consider common issues when opting for litigation.
Firstly, the financial and emotional burden of litigation can take a toll on the couple’s relationship. Additionally, litigation can also affect the relationship between the couple’s family members and children.
Secondly, litigation can be time-consuming for couples and will require a lot of legal documents and time out of work. It may also affect their time with their children just to attend court hearings.
Draft Consent Orders: The Application Process
The application process for draft consent orders can commence once couples have reached an agreement about their financial circumstances. Importantly, family courts allow couples to draft a consent order without having to go to court. The process involves:
- Making a written application;
- Setting out the parties’ preferred orders; and
- Providing the court with relevant information.
A registrar can deal with the written application and can also draft the consent order if necessary. Registrars can send cases to a court if needed. However, they normally either make the orders as requested or write to the parties if they need additional information. This is why it’s still advised to obtain legal advice from a solicitor. Here are the requirements for parties who want to obtain consent orders:
- Couples can file an application for consent orders within 12 months after their divorce.
- De facto couples can file an application for consent orders within 2 years of the relationship breakdown.
- At least one of the parties should possess Australian citizenship or have a significant connection with Australia. An example of this significant connection may include having children who reside in Australia.
Couples also have the duty and responsibility to disclose any information about their income and assets. Failure to do so may result in serious consequences for a couple. These consequences may include:
- Setting aside the consent orders
- The court adjusting a property settlement in favour of those who provided full disclosure
- Fines and covering for the other party’s legal costs
- Charges for contempt of court
Draft A Consent Order With JB Solicitors
Couples who want to draft a consent order should seek a solicitor’s advice. While this may be a daunting task for couples, we at JB Solicitors can guide you through the procedures. Additionally, we can draft a consent order that will benefit both the couple.
Yet, not all couples can agree on property settlements and this may lengthen the consent order procedure. We have mediation services that can aid disputed couples in reaching an agreement for their property settlement, finances and parenting matters. Hence, taking this option can help our solicitors to draft a consent order tailored to your needs.
Draft a consent order with JB Solicitors by contacting us today.