What i need to know about Consent Orders
What do I need to know about Consent Orders?
A Consent Order is an Order from the Court, which the parties to a dispute have settled, enforcing obligations on these parties.
The benefits of Consent Orders are:
1. The parties maintain control of the outcome of the disputed issues;
2. It provides certainty and guidance for the parties;
3. It minimises potential stress, extra expenses and wasted time in pursuing the matter to a Court hearing, which in turn, if any children are involved, minimises stress on them also;
4. It also minimises further disagreement between the parties if the Consent Orders are drafted well.
5. Certain rules and regulations apply giving each party’s rights. For example, if a party breaches any of the terms, this gives rise to the other party to make a claim in Court requiring the defaulted party to obey the terms.
To obtain a Consent Order from Court, the following documents must be filed:
1. Application for a Consent Order
This requires the parties to disclose their personal information; list their assets, liabilities, financial resources and their values; plus their wages; and any issues with respect to the children.
2. An attached Affidavit to the Application
This states that each party has received independent legal advice with respect to obtaining these Orders and must be signed by each party and witnessed before a justice of the peace or a lawyer. This Affidavit is not mandatory, however, highly recommended. If no Affidavit is attached, the Court’s will analyse the Application much more than if one was attached. There is the fear that the parties were not correctly informed or understand their rights in its entirety and that one party may be agreeing to an unfair result.
3. Marriage Certificate
This is required by law so the Courts are satisfied that they have power to hear your matter.
4. Agreed Terms of Settlement
This are the terms agreed by the parties with respect to their assets and liabilities. It is highly recommended that these Terms are prepared and settled by lawyers so as to avoid future problems which may arise with poorly drafted Terms.
5. Form Order
This is a standard paragraph which is attached to the Terms of Settlement, required by law.
6. Superannuaion Information Form
This is applicable for parties whom intend to have a superannuation split incorporated in the terms of settlement. This form is completed by the appropriate Superannuation fund by both parties.
The Court then needs to be satisfied that the Application is thorough and enforceable.
Many common errors are made in drafting an Application, which leads the Court to reject the Application, increasing wasted time and costs for the parties.
We highly recommended that you have a legal representative prepare the Application for Consent Orders as they are experienced and understand the Court process and will prevent potential future disputes.
What do I need to know about Consent Orders ?
Sadly, every year, many thousands of marriages end in divorce.
Legal proceedings to end marriage will have huge emotional and financial impact on all family members - whether you are the “leaver” or the “left”.
Why obtain Consent Orders?
Consent Orders are a way of quickly and cost effectively providing finality to a settlement.
Consent orders allow for significant savings on aspects such as stamp duty, valuation fees, and any other associated costs involved when one person buys out the other person (for example, buying the share of the car to obtain full ownership).
Consent Orders allow for courteous exchanges between both people, without the involvement of the Court. This is especially important when children are involved in the marriage breakup.
Please do not hesitate to "Call Us" for immediate professional advice
Which documents are required to obtain Consent Orders ?
There are several pieces of documentation that you will require to be filed at Court to obtain a Consent Order. These include the Application for Consent Order (form 12A), a copy of the Marriage Certificate, the agreed terms of settlement, a form of Order, copies of any prior Apprehended Violence Orders (if there are any), and if there is to be a split in Superannuation, as Superannuation Information Form also needs to be submitted.
Application for Consent Orders - Form 12A
This form records all information that is deemed significant and factual. This information includes:
§ names of both people involved
§ addresses
§ dates of birth
§ occupations
§ details of the marriage - date and location
§ if there are children involved, any relevant details concerning them also need to be disclosed
§ assets, liabilities, and financial resources also need to be listed, as well as their values
§ both people must also divulge their current gross weekly income.
This documentation must satisfy the Court that the agreement between the two people is sound and even-handed given the individual situation case.
The Application also requires an affidavit from both people. The affidavit needs to state that each person has had independent legal advice. The affidavit needs to be signed by both people in front of a Justice of Peace or lawyer.
It must be noted that it is not required of both parties to obtain legal advice, however there can be considerable risks associated with not doing so. These risks include:
§ both parties agreeing on a settlement that is inequitable
§ signing inadequately prepared documentation to settle the separation.
If either of the people has not obtained legal consult during the process, the Court will scrutinize the agreement more closely than normal. Additional information may be required to satisfy the Court that the agreement is in the best interests of both people and any children involved in the process.
It is also a possibility that one of the people involved may later apply to have the order set aside, stating they signed the documentation under duress. They may also claim that they did not fully comprehend the documentation that they signed.
To ensure that these circumstances are unlikely to happen to you, it is important that you obtain independent legal advice.
Please do not hesitate to "Call Us" for immediate professional advice
Marriage Certificate
The Marriage Certificate is required when applying for Consent Orders. This is so the Court can establish that it has relevant power in your circumstances to make appropriate decisions.
Agreed Terms of Settlement
Each case always differs due to the individual circumstances. The Terms of Settlement outlines the agreement reached by both people in regards to assets and liabilities.
Form of Order
The Form of Order is a standard, formal paragraph that is required with each Term of Settlement. This Order must be attached to the Terms of Settlement.
Superannuation Information Form
This form is required to outline to the Court the intended division of superannuation assets between bot people. The form is filled out by the applicable superannuation funds of both people.
What is the procedure for obtaining Consent Orders ?
When completed, the Application for Consent Orders the related Terms of Settlement, and the corresponding material need to be filed with Court Registry. If the Court deems the Orders acceptable, then in the weeks following, a sealed, stamped order will be returned to both people or your lawyer.
General errors made in Consent Orders
There are many common mistakes that are made when applying for Consent Orders. Below are some general errors that are frequently made:
§ the Terms of Settlement do not list and include all assets, liabilities and financial resources of both people, leading in the future to further disputes.
§ improperly drafted orders can unenforceable. It is important that values, time constraints for any payments, and any other relevant conditions be clearly stated in such a way that the Court deems easily enforceable.
§ ensure that the Terms of Settlement include penalties for any conditions or agreements that are not meet by the other person.
§ clearly state in your order who is required to carry out each action and who will be the beneficiary of the action. Failure to make clear both people’s responsibilities can lead to an unenforceable order. For example, if there are assets that are required to be transferred from Mary’s name to Fred’s name, it is important to state who will be responsible for making the transfer.
Antwan lawyers legal team will be able to assist you in avoiding these errors, and ensure that the process is properly managed.
Please do not hesitate to "Call Us" for immediate professional advice