DIVORCE SETTLEMENT THROUGH CONSENT ORDERS

Applicable Laws

The Australian Constitution divides power between the States and the Federal (Commonwealth) governments. The Federal parliament has the power to pass laws affecting the whole of Australia on specific subjects defined by the Constitution; this includes the area of family law.

The Family Law Act 1975 was passed by the Federal parliament and applies to the whole of Australia. It covers all aspects of family breakdown including separation and divorce, property settlement following marriage breakdown, spousal maintenance and child care issues. It relates to the parenting of children regardless of whether the parents were married or not. Some areas of family law are however still governed by State parliaments.

Applicable Courts

The Family Law Act set up two family Courts, The Family Court of Australia and the Federal Magistrates Court. The practice and procedure of these Courts are contained in the Family Court Rules 2004 and the Federal Magistrates Court Rules 2001. The majority of applications can be filed in either Court however the Federal Magistrates Court does not have powers to deal with adoption, property disputes when the value is over $700,000 (except with the consent of both parties) and issues concerning the validity of a marriage. Applications for divorce should be filed with the Federal Magistrates Court. The Federal Magistrates Court aims to provide a quicker, cheaper service.

The Child Support Agency governs all applications for financial support for children born on or after 1/10/89, children whose parents separated after 1/10/89 and children whose siblings were born after 1/10/89.

The approach taken by the Courts

The Courts apply the basic principles contained in the Family Law Act which encourages parties to reach agreement without the need for a Court hearing. Except in limited circumstances, parties are required to demonstrate that they have tried other ways of resolving their differences before seeking the intervention of the Courts. There are very good reasons for this. Family breakdown is a difficult and stressful time for all concerned, particularly children. Courts encourage the amicable settling of family affairs to save time, expense and further distress. Legal fees can be expensive and Court proceeding are often time-consuming and stressful for all concerned. If parties can reach mutual agreement then arrangements can be put in place much more quickly thus reducing the period of uncertainty and enabling parties to get on with their lives. A mutual agreement has the advantage of making the participants feel that they have had some say in the decision making process rather than waiting for a Court decision. Agreements are far more likely to be adhered to if reached amicably and without resentment.

In the event that an application is lodged, Courts are not concerned with apportioning blame but rather with finding workable and fair solutions. For this reason the principle of the no-fault divorce was established and the only ground for divorce in Australia is the irretrievable breakdown of the relationship which must be demonstrated by a 12 month separation. Courts make decisions on applications involving children on the basis that the best interests of the child is the main consideration.

What is a Consent Order?

A Consent order is an agreement which has been made between separated or divorced couples, approved by a Registrar from the Family Court or Federal Magistrates Court and made into an order of the court. The agreement can be about property settlement, children’s issues or spousal maintenance.

Timing of an application

An order can be sought even if there are no other court proceedings or if agreement can be reached at any stage during court proceedings. An application can be made whilst couples are going through the process of separating or at any time thereafter. Couples can reach agreement about their property settlement and parenting arrangements without having to apply for a divorce. Once a marriage has been dissolved, parties can make an application for a consent order with regard to their parenting at any stage. Applications in respect of property settlement must be made within 12 months of the dissolving of the marriage

Cost of an application

The application is free. As discussed in paragraph 11 below, you are strongly advised to seek legal advice prior to filing your application.

Benefit of a Consent Order

The end of a marriage can be a bewildering time because the breakdown of a family unit can mean a great deal of uncertainty about parenting arrangements and the parties’ financial future. Many people mistakenly believe that they will have little control over these arrangements and may face crippling legal costs in the process. If you are able to reach an agreement about your arrangements by negotiation, you can retain control over your situation, achieve some certainty about your future and save yourself thousands of dollars in legal fees. The benefits of applying for a Consent order to formalise this agreement are as follows:

1. The application is free. Although we do recommend that you seek independent advice prior to filing your application, this kit will ensure that you have done most of the work yourself thereby saving on legal fees. You can also seek free legal assistance from community legal centres.
2. You do not have to go to court and avoid the uncertainty and stress of litigation.
3. You retain control over your situation.
4. You avoid unnecessary animosity and resentment which is particularly important if you continue to share parenting responsibilities.
5. You do not waste the family resources and assets on legal fees.
6. You can both have peace of mind and move on from a difficult time.
7. You can also have peace of mind that as a court order, your agreement can be enforced and both of you must therefore stick to your agreement

What a Consent order can be used for

A consent order can be used for parenting orders which can address where the child lives (residence), the time the child spends with the other parent and the arrangements to achieve this (contact). Parenting order can also be used for specific issues such as schooling, medical treatment, diet, name of child, and religious upbringing. Consent orders can also be used for financial orders relating to how your property, financial resources, superannuation and liabilities should be shared between you. They can also include an order for spousal maintenance to support a current or former wife or husband.

What a Consent order cannot be used for

A Consent order application cannot be used for the following:

• Property settlement for de facto couples unless there are children to the relationship and property orders also relate to the children.
• Spousal maintenance for de facto couples
• Child support for children born after October 1989 or whose parents separated after that time. This is handled by the Child Support Agency. Please note, for further information you can visit the CSA website at www.csa.gov.au or telephone them on 131 272.

Can I do it all myself?

Yes. AussieLegal has a legal kit that is specifically designed to help you make an application for Consent Orders yourself.

Divorce Settlement through Consent Orders  $89.95

This Kit will provide you with all you need to prepare and submit the application to the Court, including:

• background explanation of the law;
• detailed case studies on property settlement, child residence and access;
• an online Property Settlement Calculator to assist is determining your share of the matrimonial property;
• completed example of the Application;
• completed example of a Draft Consent Order; and
• blank templates of both the Application and Draft Consent Order for filling in.

Consent Orders Plus  $400.00

The Consent Orders Plus Service includes:

• the Divorce Settlement through Consent Orders kit, including the Property Settlement Calculator; and
• a check of your Application AND the drafting of the Consent Orders;
• Please Note: This kit does NOT include legal advice about your agreed financial or parenting arrangements.