One of the questions that people who have separated from their spouse or partner often ask us is whether it is necessary to obtain ‘consent orders’ to deal with their property.
The short and simple answer is that it is almost always a good idea.
When people talk about consent orders, what they are referring to are orders that will be filed in the Family Court of Australia to outline how their assets and liabilities will be dealt with. Normally the parties have come to an agreement about how to split up their property and already know each others’ financial situation.
The real benefit of obtaining consent orders over having an informal property settlement is that once sealed consent orders have been obtained, neither party can claim that the informal division of assets was unfair except in limited circumstances, i.e. where they may be able to have the original order set aside. The orders bring finality to the issue.
We often also get asked, is it still necessary to get a consent order if there are no assets? Again, it generally is a good idea, but it does depend upon the circumstance of each individual matter and costs are an important consideration for most people.
There are certainly many people who decide that the risk of their former spouse making a claim is low enough that the cost of applying for consent orders isn’t worth it.
The reason why we still usually recommend obtaining consent orders even if both parties have little in the way of assets is that if one party were to later on receive a large sum of money, for example, from winning the lottery, through an inheritance, redundancy, etc., then without consent orders a claim could be made against that asset, despite the asset having been received after the date of separation. (Though usually the claim is more limited than it might be if the asset had been received during the relationship.)
It is important to understand, that unless you have a consent order or a binding financial agreement (which we will deal with in a separate blog post), you may not be protected. Even where an application would normally be out of time. We often have people come in showing us statutory declarations or some other informal arrangement. Unfortunately, these do not prevent the other party from coming back and seeking more than what was originally agreed. In other words, they could potentially come back for a ‘second bite of the cherry’. Whether or not they will be successful will of course depend upon the circumstances of the situation.