Consent Orders or a Minute of Consent Orders are court orders.
Court orders arise from a variety of situations such as,
- Orders that are made without any agreement of the parties;
- Orders that are made with agreement of the parties.
When two people separate and they reach an agreement about who gets what from their assets, the agreement can be turned into legally enforceable binding court orders. The answer to Are Consent Orders Legally Binding in Australia is yes.
Do Consent Orders Need to Be Signed by Both Parties?
Do Consent Orders need to be signed? The answer to this is also yes. To make sure that the court has confidence that the document called a “Minute of Consent Orders” reflects the agreement reached between separated couples, the court will require each page of the Minute of Consent Orders to be signed.
Are Consent Orders Legally Binding Once Sealed by the Family Court?
Consent Orders are legally binding in Australia because they are still orders made by the Federal Circuit and Family Court of Australia and the Family Court expects that people will comply with what the court says needs to happen.
Bearing in mind that consent orders are a type of court order by agreement, an interesting fact is that the Family Court is not a rubber stamp to agreements. This means that even though your consent orders are legally binding, the Family Court may reject or decline to make the consent orders in the first place.
Are Consent Orders Legally Binding? Yes.
Do Consent Orders need to be signed? Yes.
Will the Family Court approve my Consent Orders? Not necessarily.
What happens if my consent orders are approved by the Family Court? Once approved and sealed by the Family Court, your consent orders are legally binding and the Family Court will expect compliance with the orders.
What Happens If Someone Breaches a Legally Binding Consent Order
If someone doesn’t comply with the orders once the Family Court makes them, the party who is not in default of the orders can apply for enforcement of the orders. This is an action that you should obtain legal advice about and it is possible that the defaulting party may be liable to costs.
Court orders have the full weight of the law and there are very limited situations where court orders can be set aside or varied.
If you have separated from your spouse and have applied to the Family Court to make your consent orders legally binding, the Family Court will only approve the application if the Family Court thinks that the agreement is just and equitable. Just and equitable is essentially what is fair.
Proposed consent orders that are not fair will not be approved by the Family Court. Consent Orders need to be signed so that at the bare minimum, the Family Court knows that each party is in agreement with the proposed orders.
Are Consent Orders Legally Binding If the Court Refuses Approval?
A court that decides the agreement isn’t just and equitable won’t seal the proposed orders. Without that seal from the Family Court, are consent orders legally binding in any way? No. The court’s approval is what gives the orders their force.
Consent Orders vs Binding Financial Agreements
If you and your ex reach an agreement about who gets what after a separation, it’s important to get legal advice and also to convert your agreement into consent orders that are legally binding. There are other ways to document your agreement with your ex about who gets what however only two ways of documenting the agreement carries with it the weight of the law and enforceability. Those two ways are:
- Consent orders; or
- Binding financial agreement.
Consent orders can be put in place as a do-it-yourself process. Binding financial agreements need two certificates from a lawyer acting for each party to put in place.
Are Consent Orders Legally Binding? Yes.
Are Binding Financial Agreements legally binding? Yes.
Which one is cheaper? Consent Orders.
Why? You don’t need to involve lawyers.
What if I prepare a Binding Financial Agreement without the certificates? It’s not legally binding.
How to Make Your Agreement Into Legally Binding Consent Orders
Turning a private agreement into a binding and enforceable court order requires the following steps in Australia:
- Complete an application for consent orders. The application is a proforma document provided by the Family Court for free.
- Prepare a Minute of Consent Orders. This document becomes the Family Court order and template minute of consent orders and example consent orders are available on our website. Each page of the Minute needs to be signed.
- Submit the application to the Family Court with supporting documentation. Supporting documentation varies on a case by case basis. It could include a copy of the marriage certificate, a copy of your superannuation member statement or a copy of your title search or any combination of these.
When the Family Court receives a complete application for consent orders, the Family Court will take a few weeks to review the application to make sure that all the documentation is correct and the minute of consent orders reflects an agreement that the Family Court thinks is fair.
If your application is approved by the Family Court, the court orders will be sent to you which will reflect the consent orders that you and your ex have each signed.
If your application is not approved by the Family Court, the court orders will not issue however the Family Court will typically direct you to get legal advice or give you a heads up on what part of your application wasn’t quite right and needs fixing. This is called a requisition. The Family Court will not typically decline to make orders without issuing a requisition to give you an opportunity to address whatever issue comes up from your application.
If consent orders are made and someone doesn’t follow them, a separate application called an enforcement application can be made at the Family Court. You should obtain legal advice on the steps to make an enforcement application.
Do Consent Orders Need to Be Signed on Every Page of the Minute?
Yes. Do consent orders need to be signed on each page of the Minute of Consent Orders? Both parties must sign every page before the application is lodged with the Family Court. The court won’t process partially signed or unsigned consent orders.
Affordable DIY Consent Orders Templates from Legal Aspirations
At Legal Aspirations, we provide a DIY Consent Orders Template and DIY Minute of Consent Orders as an affordable solution to obtaining consent orders in the Family Court without paying hefty lawyer fees.
Our Cart of consent order templates contains a variety of consent order templates, example consent orders and minute of consent order precedents.
Using our Questionnaire, we also provide a more customised minute of consent orders template for users who want to personalise their consent orders.
For more information, we welcome you to contact us at support@legalaspirations.com.au
Alternatively, click here to view our Cart of consent orders templates, minute of consent orders examples and consent order precedents or Get Started to create your own personalised minute of consent orders.