Our family lawyers in Perth share everything you need to know about consent orders for financial settlement.
What Is Financial Settlement In Divorce?
A financial settlement in divorce determines how a couple’s property, assets and finances will be split after a separation.
The terms of the financial settlement may either be determined by the Court if the matter is litigated, through a binding financial agreement, or with the consent of both parties.
What Is A Consent Order?
A consent order is issued by the Court, but the terms of the consent order are previously agreed between the two parties involved. The terms of the consent order are not decided on by the Judge or Magistrate.
Consent orders have the same legal weight as any ruling handed down by a Court. They are legally-binding and are enforceable.
Neither party is required to obtain legal advice prior to signing consent orders, but considering the severity of the matter and the complex application procedure, advice from a lawyer or mediator is strongly recommended.
Types Of Consent Orders
There are two types of consent orders.
Parenting orders deal with all children’s matters. They may include living arrangements, day to day care, child development decisions, and how long or often the children may spend with the other parent. Australian Family Law demands that parenting orders must always be in the best interests of the child.
Financial orders deal with all matters of a financial nature. They may include the splitting of all assets and liabilities, such as property, businesses, investments, superannuation and spousal maintenance. The only requirement is that the overall settlement be fair and equitable.
Can You Include Superannuation Funds In A Financial Settlement?
You can most certainly include superannuation funds in a financial settlement. Superannuation is regarded as a valuable financial asset and forms part of the overall asset pool.
There are however strict and complicated rules that govern the division or payout of superannuation, often requiring professional assistance. Read more about what happens to your superannuation when you divorce here.
What Are The Benefits Of Getting Consent Orders For Financial Settlement?
There are several benefits of getting consent orders for financial settlement.
Firstly, it avoids an often lengthy, stressful and costly litigation process, paving the way for a more amicable post-separation relationship between the two parties.
Secondly, the terms are mutually agreed by both parties to suit their own specific set of circumstances, and not decided by a Judge or Magistrate.
Thirdly, having a consent order or binding financial agreement in place means that there is no stamp duty and transfer fee payable when transferring property ownership from one person to the other.
Last but not least, it brings finality to the relationship and peace of mind for both parties that no further claims can be made by either one in the future.
Who Can Apply For A Financial Consent Order?
All separating, separated, divorcing or divorced couples can apply for a financial consent order.
When Can You Apply For A Financial Consent Order?
Applications for a financial consent order can be made as soon as all financial matters have been agreed upon by both separating parties. Applications can be lodged at any stage, even before the divorce has been finalised.
How Do You Apply For Consent Orders For Financial Settlement?
Applications for consent orders for financial settlement are usually filed by a family lawyer or a family mediator, but those not using any legal services, applications can be lodged directly to the Australian Family Court.
This process can however be fairly complex, and some legal advice is strongly recommended.
What Documents Do You Need When Applying For A Financial Consent Order?
Married couples need to submit a copy of their marriage certificate and divorce order (if available). De facto couples need to provide an affidavit establishing a de facto relationship existed.
Additionally, copies of certificates of title of any properties that are being transferred, must be submitted. In the case of superannuation split, copies of the last two months statement and a confirmation letter from the trustee of the fund that they have no objection to the fund being split, must accompany the application.
How Much Does Is Cost To Apply For A Consent Order?
An application for a consent order in Western Australia (Form 11) currently costs $180. See a schedule of all Court fees in WA here.
How Long Does It Take For A Financial Consent Order To Be Granted?
Consent orders for a financial agreement may take between 8 to 12 weeks to be granted.
If the Court is not entirely satisfied with the terms it may reject the application or ask for further documentation, which may delay the process.
Do Financial Consent Orders Expire?
Unless stipulated on the order, consent orders have no expiry date. Terms may however, be changed if or when circumstances for either parties change significally, but must be done through the Court.
If you need help applying for consent orders for financial settlement following your separation or divorce, speak to our family lawyers in Perth today.