Do We Need Consent Orders?
13/08/2019
The end of any relationship can not only be upsetting and stressful, but it can also be daunting figuring out the division of assets, liabilities and superannuation. Assets usually include your home, investment properties, cash at bank, shares and superannuation. How these are divided will depend on a number of factors such as:
- health and age of the parties
- number and age of any children
- employment and income of each party
It is in your best interests to avoid Court proceedings if you can, to try avoiding irretrievable damage to the ongoing relationship with your ex-partner, particularly if children are involved. Coming to a negotiated outcome will save you stress, delay and costs. Once a negotiated outcome is reached it is important that such agreement is reduced to writing, preferably in the form of Consent Orders.
What are consent orders?
Consent Orders outline not only the division of assets, liabilities and superannuation but the timing of any payments and transfers. The Orders themselves are filed with the Court for the Registrar to review them. You do not need to attend Court. Once approved the Court Seal is affixed to a copy of the document and returned to you or your lawyer. Having regard to the need for Court approval, the division needs to be fair and reasonable or it may be rejected.
As to what is deemed fair and reasonable can be a difficult question and obtaining proper legal advice will help you to make the correct choices and decisions.
The advantage of Consent Orders for you is the finality of the matter, as there are limited circumstances in which they can be set aside or varied. That means you are free to move on with your life knowing what your obligations are, what your assets are and that any assets acquired are protected from a claim in the future. This can be very important if your circumstances drastically change, for instance, if you receive a financial windfall post-divorce, such as an inheritance or lottery win. Without Consent Orders, your assets may still be exposed to a claim from your ex-partner.
There are also other benefits, such as exemptions from certain taxes on transfers or disposals of assets. The common one being an exemption from transfer duty or stamp duty on the transfer of an asset to yourself, such as the other half of the real estate into your sole name. If you are taking over a mortgage or refinancing, usually the financial institution will want to see sealed Orders.
The limited circumstances in which Consent Orders can be set aside or varied are by consent, that is both parties agree to the variation or setting aside. If not by consent and one party is wanting them set aside the Court would need evidence of fraud, duress, suppression of evidence, false evidence or some other matter.
Needing to ensure that Consent Orders are approved, that there is no risk of an application setting them aside and the like is why obtaining proper and competent legal advice and representation is essential.
For further information, get in touch with one of our family lawyers.