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If both parties have reached agreement about parenting and/or financial/property arrangements and want to formalise the agreement to make it binding, they can apply to the Family Court of Australia for consent orders.

In previous articles we outlined the way in which financial agreements (also known as binding financial agreements and sometimes pre-nuptials) can be used by two parties to a marriage or de facto relationship that has broken down to agree on how their finances will be divided.

So how do consent orders differ from a financial agreement?  Differences include:

  • Financial agreements may be entered into before, during or after a relationship while consent orders are only used after a relationship has ended.
  • Financial agreements cannot deal with parenting issues, while consent orders can.
  • Financial agreements are a private contract between the parties, while consent orders require the approval of a Registrar of the Family Court. The Registrar will determine whether the proposed Order is just and equitable.

We have also previously discussed circumstances in which a financial agreement may be overturned or disputed.

When consent orders are filed that relate to the care of children, the court assesses whether the proposed terms are in the child’s best interests prior to formalising the agreement as an Order.

As the terms of the parties’ agreement have been reviewed and considered by the Court, this may serve to reassure the parties as to the appropriatness of the terms.

Obtaining consent orders

While it is possible to apply directly to the Family Court for consent orders, we strongly recommend seeking the advice of an experienced family lawyer in preparing the documentation.

When you instruct a family lawyer to assist you in obtaining consent orders they bring a detailed and in depth understanding of what the court will expect and may be anticipated to approve in granting orders.  Your lawyer will also help you to understand your rights and responsibilities and provide the conduit for negotiation with the other party to the relationship, if necessary.

Without this advice your application risks being rejected by the court or failing to properly address all aspects of parenting / property arrangements.

If you have any questions about financial agreements or Consent Orders for yourself or in relation to a client you are advising, please contact a member of our family law team for more information.