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legally binding consent orders

Are Consent Orders Legally Binding?

Yes, Consent Orders are legally binding when they have been approved by the Family Court of Australia/Family Court of Western Australia.  Consent Orders have the same legal effect as an order made after a court hearing.

When you reach an agreement about property and financial matters, including superannuation and/or parenting arrangements, and you want to formalise that agreement to make it binding, you can apply to the Family Court for Consent Orders.  Once the Consent Orders are approved by the Family Court, the orders are binding and legally enforceable on both you and your former spouse.

Consent Orders can include orders about:

  • property and finances
  • superannuation
  • spousal maintenance
  • parenting

Consent Orders can’t include orders about child support or wills and estates.

There are time restrictions as to when you can file your Consent Orders.  An Application (Consent Orders) for a property and financial settlement must be filed within 12 months from the date of a divorce order taking effect.  For a de facto relationship, an Application must be filed within 2 years from the date of separation.

If you are out of time, you can still seek leave from the Family Court by including an order that you consent to making the orders out of time.

You are not required to attend Court as the Application is reviewed administratively by a Registrar of the Family Court.  You are not required to seek independent legal advice – this is optional.

At The Legal Drafter we make your Application for Consent Orders an easy and straightforward process.  Our fixed fee service of $897 provides you with the price in advance so you can decide for yourself if you can afford the cost before you make the decision to use our services.

Unfortunately, law firms are unable to provide fixed fees because they rely on billable hours.  This means you won’t know how much your Application for Consent Orders will cost you, and this could range between $5,000 and $15,000.

If you require further information about Consent Orders please visit our website here, or alternatively the Family Court of Australia or Family Court of Western Australia.

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DIY Kits for Consent Orders – Will they be approved by the Family Court?

It is unlikely they will be approved by the Family Court where you have completed an online DIY kit.  DIY kits do not provide 100s of different templates that will fit perfectly to the needs of your property settlement or parenting arrangements. Each property settlement and parenting arrangement is different and must be drafted specifically to your situation in accordance with the Family Law Act 1975.

Correctly drafted court documents can be instrumental to the quick and desirable resolution of your matter.  Too often, people without experience in legal drafting will include unnecessary or inappropriate information in their court documents instead of focusing on facts relevant to their matter.

Well written and accurate documents supporting your matter will give the court the best possible view of your position.  It will prevent your Consent Orders being returned to you because they are incorrectly drafted.

We are experienced at drafting Consent Orders – it is what we do every day!

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financial matters

You may be exempt from paying stamp duty on your property after a divorce.

You may be exempt from paying stamp duty on your property in certain circumstances where there is a breakdown of your relationship.

Before you transfer property between yourself and your former spouse, apply to the Family Court of Australia for Consent Orders to obtain an exemption from paying stamp duty.  We can assist you with the drafting of your Consent Orders.

Each state of Australia varies on the requirements and how to claim the exemption.  For more information relevant to your State, please contact us on enquiries@thelegaldrafter.com.au

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consent orders

Consent Orders – Do I Really Need Them?

YES

1. The agreement is approved by the Family Court;

2. It has the same effect as a court order made by a judicial officer;

3. The terms must be followed as stated in the document;

4. It finalises the financial matters between you and your former spouse;

5. There are stamp duty exemptions (in some cases) for a transfer of property from one spouse to another; and

6. If you are splitting your superannuation, you must have an order of the court (consent orders).

NO

1. If you have already divided your finances and transferred or sold your property; and

2. There are no assets, liabilities or superannuation to divide.

(This list is not exhaustive and is not intended as legal advice.)

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Family Court Duty of Disclosure

Disclosure of Assets & Liabilities in the Family Court

Q & A

Do I have to make full disclosure of all my assets and liabilities?

Yes you do!

What is duty of disclosure?

There are specific rules about full and frank disclosure in family law financial cases.  The rules are contained in the Family Law Rules 2004, rule 13.04. Disclosure includes the party’s direct and indirect financial circumstances.

Parties must disclose all their assets, liabilities and superannuation, including any property disposal (whether by sale, transfer, assignment or gift).  Property disposal includes anything disposed of 12 months prior to separation.

What happens if I don’t make full disclosure?

There is a risk that your consent orders or financial agreement may be set aside by your former spouse or a third party creditor.

Such was the recent case of Trustee of the Bankrupt Estate of Hicks & Hicks & Anor [2018].

THE BRIEF FACTS: The parties, Mr & Mrs Hicks filed an Application for Consent Orders for a property settlement in August 2011.  Neither party disclosed in the application that there were debts of $606,000 owed to a Mr S and unsecured creditors.  The debt was incurred during the marriage and the projects which were linked to the loan were intended to benefit the marriage.

OUTCOME: The Consent Orders for property were set aside because there was a miscarriage of justice.  On that basis, a rehearing is to occur.

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consent orders

Consent Orders – Commonly Asked Questions

What is a Consent Order in Family Law?

A family law consent order is a written agreement that is approved by the Family Court of Australia.

If you have reached an agreement with your former spouse and you want to formalise that agreement and make it legally binding, you can apply to the Family Court for Consent Orders. Consent Orders are used to formalise arrangements about:

  • the care, welfare and development of your children (known as parenting orders);
  • the division of property;
  • superannuation; and/or
  • spousal maintenance.

Consent orders have the same legal effect as an order made after a Court hearing.

Do I need a lawyer?

No, you do not need to engage a lawyer to apply to the Family Court for Consent Orders.  There is no legal requirements to have a lawyer represent you to apply for Consent Orders.  The Family Court website suggests seeking legal advice to help you understand your legal rights and responsibilities.

How long do Consent Orders take?

Once we have all the information from you, it will take 2-3 days to complete your court documents.  Once you have filed your documents with the Family Court, it usually takes 2-4 weeks for the court to approve your Consent Orders.

Is a Consent Order legally binding?

Yes, a Consent Order is legally binding on both parties.  It will offer you protection should the other party not comply with the orders.

Can you change an existing Consent Order?

Yes, you can change an existing Consent Order if both parties agree to the change.  You can make an application to vary or discharge an existing order.

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Secretly Recording Your Spouse’s Conversations

recording spouse's conversation cartoon

Secretly recording your spouse’s conversation where there is family violence is an issue that has been discussed widely.  When family violence, child abuse and neglect takes place behind closed doors without any witnesses being present, it is very difficult to provide evidence to the family courts when it is illegal to secretly record conversations in some instances.  However, with increasing public awareness and media attention, the difficulties of obtaining evidence behind closed doors is now being recognised by the family courts.

In the New South Wales case of Janssen & Janssen the court noted on the facts before them that, “it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors”.  The court stated that the decision to admit the secret recordings in this case were based on the particular facts of the case and that the father had maintained a charming public face but had engaged in conduct that alleged to have constituted family violence under the Family Law Act 1975 (Cth).

The Independent Children’s Lawyer (ICL) in this case submitted that in secretly recording your spouse’s conversations would also assist in determining the parenting abilities of the primary carer which may have been compromised as a result of the content and tone of the communication of the father.  It is not only what was said in the recordings, but also how it was said.

The Family Court said that evidence from secretly recording your spouse’s conversation in relation to family violence matters will have to be:

  1. established clearly;
  2. matters of opinion put in appropriate context and given appropriate weight;
  3. dependant upon who was expressing the opinion and on what basis; and
  4. the establishment of the necessary background facts.

Please note that the law in Queensland in relation to privacy and the recording of conversations is different from the law in New South Wales and other states:

  • it is illegal to record a telephone call with a device physically attached to the telephone;
  • it is illegal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
  • it is legal for a telephone call to be secretly recorded by an external device by a person who is a party to the conversation; and
  • it is legal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
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Divorce Decree

Applications for Divorce for Same-sex Marriages

Same-sex marriages are now recognised in Australia as a result of the amendments to the Marriage Act 1961 (Cth).  Same-sex couples applying for a divorce through the Family Law registry can use the existing form “Application for Divorce” and make hand written changes to the terms ‘Husband’ and ‘Wife’ until the Attorney-General’s Department amends the Application for Divorce.

For marriages granted overseas, where a marriage certificate was provided, is now also recognised in Australia.

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What You Need To Know Before Signing a Binding Financial Agreement

Where there is duress, undue influence or unconscionable conduct at the time of entering into a Binding Financial Agreement, the court will set aside the agreement.

In the recent case of Thorne v Kennedy, the High Court of Australia set aside two (2) financial agreements on the grounds of duress, undue influence and unconscionable conduct.

The Facts

The Husband (Mr Kennedy) – 67 years old divorcee with three adult children and assets worth between $18-24 million.

The Wife (Ms Thorne) – moved to Australia in 2007 after meeting Mr Kennedy online 7 months prior.  Ms Thorne, a 36 year old European woman had limited English and no substantial assets.

On 20 September 2007, 10 days prior to the wedding, the parties entered into an agreement despite Ms Thorne receiving independent legal advice advising her not to sign the agreement.  However, Mr Kennedy informed Ms Thorne that if she did not sign the agreement the wedding would not proceed.  At this time, Ms Thorne’s sister and parents had travelled to Australia for the wedding and were staying with the parties in Mr Kennedy’s home.

Only 4 days before the wedding, the Wife signed the first agreement.  On 5 November 2007, 30 days after the wedding, the wife signed a substantially identical post-nuptial agreement (the second agreement).  Again, the Wife received independent legal advice not to sign the agreement.  The agreement was for the Wife to claim $50,000 after three or more years of marriage and if the Husband died while the parties were living together the Wife would receive a penthouse worth up to $1.5M, a Mercedes and a continuing income.

In 2011, the parties divorced, and the Wife commenced proceedings in the Federal Circuit Court seeking a property settlement claim of $1.24M, including spousal maintenance.  In 2014, during the court proceedings, the Husband died, and the Husband’s estate continued to prevent the Wife from making a claim on the estate.

The Decision

In March 2015, the Federal Circuit Court (the primary judge’s decision) set aside both agreements and held that the Wife had “signed the Agreements under duress borne of inequality of bargaining power where there was no outcome to her that was fair and reasonable”.  The court relied upon 6 factors in determining their decision:

  1. the Wife’s lack of financial equality with the Husband;
  2. the Wife’s lack of permanent status in Australia at the time;
  3. the Wife’s reliance on Mr Kennedy for all things;
  4. the Wife’s emotional connectedness to their relationship and prospect of motherhood;
  5. the Wife’s emotional preparation for marriage; and
  6. the publicness of her upcoming marriage.

The Husband’s executors appealed to the Full Court of the Family Court which overturned the Federal Circuit Court decision.  The Full Court found the agreements to be fair and reasonable because the Wife had been told by the Husband at the outset of their relationship, and she accepted it, that his wealth was for his children and provisions were made for the Wife should the Husband predecease her.  The Full Court also held that the Husband’s conduct was not unconscionable because:

  1. there was no misrepresentation made by the Husband about his financial position;
  2. the Husband made it clear at the outset that the Wife would not receive any part of his wealth on separation;
  3. the Wife believed the Husband would never leave her and her lack of concern about her financial position; and
  4. the Husband’s acceptance of handwritten amendments to the agreements that were made by the Wife’s solicitor.

The Wife then appealed the Full Court’s decision and the appeal was heard in the High Court of Australia in August 2017 and the Judgement was delivered in November 2017.

The High Court upheld the Federal Circuit Court’s decision and found the agreements had been entered into by duress, undue influence and unconscionable conduct.

The matter was returned to the Federal Circuit Court awaiting judicial determination regarding the Wife’s application for a property settlement and spousal maintenance.

This Case Provides Some Clarity For The Future

The High Court in Thorne & Kennedy listed 6 factors which will be more strongly considered where there has been duress, undue influence and unconscionable conduct in the context of pre-nuptial and post-nuptial agreements (at [60]):

  1. whether the agreement was offered on a basis that it was not subject to negotiation;
  2. the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement;
  3. whether there was any time for careful reflection;
  4. the nature of the parties’ relationship;
  5. the relative financial positions of the parties; and
  6. the independent advice that was received and whether there was time to reflect on that advice.

Please note that the High Court gave clarity to further issues, and some still remain unresolved.

This article is not legal advice and is intended to provide general information only. 

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