If a separated couple has reached an agreement about their property settlement, this can be formally recorded through a 'consent order'. This involves filing an Application for Consent Orders and draft consent order in the Family Court of Australia. A Registrar of the court then considers the Application and, if satisfied, seals the draft consent order so that it has legal force. It is not essential that a separated couple formalise their agreement this way, but there are benefits to doing so. For example, they can avoid stamp duty associated with property transfers and the agreement can be enforced. As well as this, once the consent order has been sealed, it is difficult for the parties to make a further claim against each other for property settlement.
If a consent order has been made, a party to the consent order can apply to the court for the order to be set aside in some prescribed circumstances. These include:
- Where has been a miscarriage of justice. This can include that one party has acted fraudulently or the other has acted under duress. It can also include circumstances where one party has given false information to the other party or has suppressed information.
- Where circumstances have arisen since the order was made that make it impracticable for the order to be carried out or impracticable for a part of the order to be carried out.
- Where a person has not followed through with their obligations in the order and, as a result, it is just and equitable for the court to set aside or vary the order.
- Where circumstances have arisen since the order was made which are exceptional and relate to a child of the relationship or the child's primary carer which would cause hardship.
- Where a proceeds of crime order has been made covering property of the parties, or a proceeds of crime order has been made against a party of the relationship.
If you have had a property settlement order made by consent through the court system and are unsure about whether it should continue to apply, feel free to contact us on 8221 7020 or email us at firstname.lastname@example.org. One of our solicitors will be happy to speak with you about your options.