If you and your former partner have reached an agreement about dividing you property and finances, you do not need to go to court.
However, you should formally document your agreement, to make sure that you each understand what you have agreed, and to help you to avoid any disputes or misunderstandings in the future. There are two ways in which you can document your agreement in accordance with the Family Law Act 1975:
- consent orders, and
- a Financial Agreement.
Consent orders
Consent orders are proposed orders which you and the other party agree on and ask the Court to formalise as court orders. You and the other party can apply for consent orders to be made without going to court.
You should seek legal advice before entering into consent orders.
Disclosure
The Application for Consent Orders requires each party to make full disclosure of their respective financial circumstances – i.e. each party has to set out their financial circumstances, and sign a statement confirming that what they have set out is true and correct.
Each party should satisfy themselves that what the other party has disclosed is accurate, by for example, exchanging documents verifying what has been disclosed, such as taxation returns, pay slips, bank statements, superannuation statements, and the like.
Agreement of every person affected by the orders
The Court can only make consent orders if every person who is required to do something under those orders has agreed to them.
This includes the trustee of a party’s superannuation fund, if the proposed consent orders include a superannuation splitting order.
Consent orders are legally binding
Even though consent orders are made by agreement, and can be made without a hearing, they are still orders of the Court, and are legally binding.
When a financial order is made, each party to the order must follow it. Breaching an order can have serious consequences, including being found in contempt of court in extreme cases.
Read more about compliance with, and enforcement of, financial orders.
Orders can only be changed in limited circumstances
Once final financial orders are made, including consent orders, there are only limited circumstances in which they can be changed in the future (see sections 79A and 90SN of the Family Law Act 1975).
How to apply for consent orders
For information about filing requirements and a step-by-step guide to applying for consent orders see How do I apply for consent orders?
You and the other party apply together for consent orders by filing:
- an Application for Consent Orders, and
- a copy of the proposed consent orders attached to it.
TIP: If you have also agreed on arrangements for children, you can apply for consent parenting and financial orders together in the same application. See Children – We have agreed for more information.
Financial Agreements
A Financial Agreement is a contract between two or more parties made under Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975.
You cannot enter into a Financial Agreement without first getting legal advice from an Australian lawyer.
For more information, see Financial Agreements.
More information
The Attorney-General's Department guide Property and Financial Agreements and Consent Orders – What You Need To Know, provides information to separating couples about the options for resolving property arrangements, from an informal agreement through to filing consent orders with the Court and litigating the matter in court.
Legal advice
You are not required to be represented by a lawyer, or to seek legal advice, before entering into consent orders. However, family law is complex, and getting legal advice will help you to better understand your rights and responsibilities.
For information on how to get legal advice, see Legal Help.
