You have put in the effort by sitting down with your ex-partner to reach an agreement on how to divide your assets (to finalise your property settlement) and/or the future parenting arrangements for your children. So, what happens next?. The usual next step is to draft Consent Orders to formally divide your assets and implement your agreement.
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What exactly are Consent Orders?
Consent Orders are a written agreement between former spouses that is approved by Australia's Family Court. The court's Consent Orders are legally binding once they are issued. Consent Orders can be issued in relation to either parenting or financial issues, or both.
What is the procedure for issuing Consent Orders?
This is where your family lawyer comes in handy. We help you document your agreement by preparing Consent Orders for filing in court. Our role as lawyers is also to ensure that what you and your former partner agreed to is enforceable, as well as just and equitable. Even if you and your ex-partner agree on asset division or parenting arrangements for the children, when the Consent Orders are filed in the Family Court of Australia, they must be reviewed by a Registrar of the court before they are made. If the Registrar believes that the Consent Orders are not just and equitable, or fair, they will not be issued.
Can a lawyer represent both parties?
We are unable to represent two parties when there is a conflict of interest. As a result, even if you are both in agreement, we can only represent one of you.
The process for obtaining Consent Orders
Consent Orders must be obtained through a series of steps in the Family Court.
Step 1
If applicable to your case, you and your former spouse should make full and honest disclosure of your financial situation. If any items of value are in dispute when determining the asset pool, valuations will be required. A Real Estate Valuation on the former matrimonial home, for example, maybe required, particularly if one party wishes to keep the home as part of the agreement. Disclosure is necessary to ensure that you and your former spouse are both aware of your current net asset pool for division. Furthermore, if a miscarriage of justice occurred as a result of failure to disclose relevant information, the Consent Orders may be overturned in the future.
Step 2
The negotiating process begins. This is usually accomplished by your family law lawyer sending a settlement offer to your former spouse or their lawyer if they are legally represented, which confirms and sets out the terms that you believe have been agreed upon.
Step 3
As the terms are clarified and eventually finalised, there is often some back and forth correspondence between the parties. This will also include lawyers ensuring that the terms you have agreed upon are just and equitable.
Step 4
If the agreement includes a proposed split of your or your former spouse's superannuation, your lawyer must notify the Trustee of the superannuation fund of the intended Orders. Consent Orders cannot be filed with the court until the Trustee of the superannuation fund has written consent to the wording of the Consent Orders, which will then bind the fund to make the superannuation splitting payment to either you or your former spouse.
Step 5
If you and your lawyer reach an agreement, your lawyer will draft an Application for Consent Orders and the Consent Orders. The Application for Consent Orders will include information about the current arrangements for the children (if applicable) and/or both parties' current financial situation. This information will assist the court's Registrar in determining whether the terms of the Consent Orders are just and equitable.
Step 6
Your former partner's or their lawyer will receive the draft Application for Consent Orders and the Consent Orders. Your ex-partner will then need to add their own information where necessary and request any changes they may want to make. This process may necessitate negotiations among all parties until an agreement on the terms of the Orders and the Application is reached.
Step 7
When both parties agree on the Application for Consent Orders and the Consent Orders, your lawyer will answer any questions you may have and provide you with written advice on the effect of the Consent Orders before you sign them.
Step 8
The documents are electronically filed with the court after both parties have signed the Application for Consent Orders and the Consent Orders.
Step 9
A Registrar of the Family Court of Australia will review the Consent Orders and make a decision on whether they are approved by the court.
Step 10
If the Consent Orders are approved, they become enforceable Court Orders. If they are not approved, additional work may be required to meet the court's requirements. If your divorce is amicable and you and your former partner are mostly in agreement about property settlement and child custody issues, we can help you finalise your case through Consent Orders. We at JCL Legal have assisted many couples to finalise their property matter without litigation and we are available to discuss your matter at a convenient time.
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sources: ealawyers.com.au
