Article written by Nardine Collier
Family Lawyer Cairns & Alice Springs
What are consent orders for property? Is this something I need to consider?
Yes. If you have reached agreement with your former partner or spouse about your property, you most definitely should finalise it by way of consent orders. So – what are consent orders and what do you need to do?
What are “Consent Orders”?
When we say “Consent orders” we are talking about an application that is made to the Family Court asking the court to make orders in relation to property. There are two forms that are submitted. One is the Application itself, where you set out your details, list your property, and give the court information about relevant matters and what the division of property is going to be. The second document is what we call “Minutes of Consent Orders”. This document contains the actual orders you are asking the court to make – for example, “that the Husband transfer to the Wife his right title and interest in the former matrimonial home at 1 Brown Street..etc. “
But we agree – do I really need to bother with this process? I don’t want to go to court.
YES! You do!! Firstly, you don’t actually go to court, the orders are filed in the court but the Registrar will consider them in chambers without you having to attend. The Registrar will make the orders if he or she considers them to be “just and equitable” – i.e. a fair outcome taking into account the facts of your particular case.
By filing an application for consent orders, if the court approves them the orders become orders of the court just as if you went to court and the Judge decided after hearing your case. Once you have final court orders in place, in theory, no-one can come back for another go! As with everything there are exceptions to the rule of finality which I won’t go into here – you are fairly safe to assume that the final orders are just that and there will be no future attempts made by anyone, to alter the division of property. This means you can now get on with your life financially knowing that your future earnings and property are protected from any further claims.
The next good reason to have consent orders is that you can enforce the orders if necessary. For example, your ex refuses to sign the transfer of title for the house. You can ask the Registrar of the Family Court to do so, if you have those orders in place. If your ex is supposed to pay you money for your share of the house and they default, court orders allow you to have the property put on the market and sold.
The other advantage is that if you have a court order, you are exempt from stamp duty if you are taking over the title in the house.
Can I prepare a consent order myself?
You can certainly download the form from the Family Court website – it’s called an Application for Consent Orders. You will be able to fill in a lot of the form yourself, and the form has a very helpful section at the start which explains the form and how to fill it in. However, just about everyone I speak to tells me that there are sections of the form that they are just not sure about. If the form is wrong, the Registrar will often not make the orders sought, so you have to get it right. Then there is the second document, the actual orders themselves. It is VERY important to get this right and to ensure that you have all the necessary orders to protect your interests. You will struggle to find a precedent online and every case is different, so the precedent you might find, may not suit your case.
It really is best to get some legal advice. At Collier Family Law we are happy to work with you as a “DIY…WOH” 😊 DIY – as in, you fill in as much of the form as you can to save our time (which is your money) but “with our help” – we check the form for accuracy and make sure all the necessary orders are in there, correctly worded.
What does it cost?
There is a court filing fee of $165. You may be exempt if you hold certain government concession cards or can demonstrate hardship. The legal fees for preparation can vary depending on how complex the document is and how much of it we do for you, but we will give you that estimate at an appointment.
Can I get a final agreement any other way?
Yes, you can enter into a financial agreement. The process is quite different however and you must obtain legal advice before thinking about a financial agreement, as to whether the consent orders process is a better option.