What Are Consent Orders — and Do We Need Them If We Already Agree?
Author: Andrea Hooper
Founder I Separation Specialist
If you and your former partner have already reached agreement about your property settlement, it can seem strange to involve the Court at all.
You might reasonably think: “If we both agree, isn't that enough?”
Reaching agreement is an important step.
But reaching agreement and legally formalising that agreement are two different things.
For many separating couples, Consent Orders provide the mechanism for turning the agreement they have reached into legally binding court orders — without asking a judge to decide the dispute (which may not even exist) for them.
What are Consent Orders?
Consent Orders are orders that you and your former partner agree to and ask the Court to make. They can deal with parenting matters, financial matters, property matters, or a combination of these.
For property settlements, Consent Orders can cover arrangements such as:
The important difference is that once the Court makes the orders, they become legally binding court orders rather than simply a private understanding between you.
Does applying for Consent Orders mean we are going to court?
Not in the way most people imagine. If you have reached agreement and apply for Consent Orders, you are not asking the Court to hold a trial and decide who should receive what. You are asking the Court to consider the agreement you have already reached.
Applications for Consent Orders are considered by a Registrar. You generally do not have to attend court unless the Registrar specifically asks you to - which is uncommon. The Registrar may approve the application, request further information or amended documents, or decline the application (which can be common in a DIY application).
So when people say:
“We don't want to go to court,”
what they often mean is:
“We don't want to fight our separation through the courts.”
Using the Court to formalise an agreed outcome is very different from asking the Court to determine a contested property settlement.
Will the Court approve whatever we agree to?
Not automatically. Even when both people agree, the Court must still be satisfied that proposed property and financial Consent Orders are just and equitable.
The Court cannot simply approve an agreement because both parties have signed it. That is why it is important to understand the overall financial position and the family-law considerations before finalising your settlement.
It is also why an agreement that might seem straightforward, for example:
“I'll keep the house and you keep your super” should still be looked at in the context of the entire property settlement.
What information does the Court look at?
An Application for Consent Orders provides the Court with information about your financial circumstances and the proposed outcome.
The current family-law framework requires consideration of:
This is one reason completing proper financial disclosure and establishing an accurate balance sheet before settling is so important. (You do not need to engage legal representation to do this).
The final agreement should be based on a clear financial picture rather than estimates, assumptions or incomplete information.
Do Consent Orders have to divide everything 50/50?
No. There is no rule requiring Consent Orders to divide property equally. A proposed settlement may be 50/50. It may also be 55/45, 60/40 or another outcome, depending on the circumstances.
The relevant question is not:
“Is it equal?”
It is:
“Is the overall outcome just and equitable in the circumstances?”
What if one person is keeping the family home?
This is a common example of why the wording of Consent Orders matters. It isn't usually enough for an agreement simply to say:
“Jessica keeps the house and Sam gets $300,000.”
The orders may need to deal with practical matters such as:
A workable settlement is not just about agreeing on the number. It also needs a workable implementation plan. This is one reason careful drafting matters.
What if our settlement includes superannuation?
Superannuation can also be dealt with through Consent Orders. If you are proposing a superannuation splitting order, there are additional requirements. These include establishing the value of the relevant superannuation interest and giving the superannuation trustee procedural fairness before the proposed splitting orders are filed.
Under the current Court process, the trustee must generally be given the proposed orders and an opportunity to object before filing. This is not simply an administrative technicality. Superannuation is often a significant part of a couple's overall financial position, and the wording and implementation of a superannuation split need to be handled correctly.
What if we've just written our agreement down ourselves?
Many couples understandably start with something informal.
That might be:
That may be extremely useful in showing what you have agreed. But it is not the same thing as having final court orders governing the property settlement. If you are relying on an informal agreement, it is worth getting legal advice about whether and how it should be formalised.
Why bother formalising things if we trust each other?
Because the purpose of formalisation isn't necessarily about mistrust. It is about certainty.
People's circumstances change. A property may increase in value. Someone may enter a new relationship. A refinance may take longer than expected. A business may change. One person may later remember the agreement differently. The relationship between two people after separation can also be very different three years later from what it was when they first separated.
Clear final orders remove much of that uncertainty by recording exactly what must happen.
Are there time limits?
Yes, and this is important. For married couples, applications for property settlement generally need to be made within 12 months after a divorce becomes final.
For most de facto couples, the general time limit is two years after the relationship breaks down.
Applications outside those periods can become more complicated and may require the Court's permission. You do not have to wait until you are divorced to resolve your property settlement. Consent Orders can be filed after separation.
Should we get legal advice before signing?
The Court recommends obtaining independent legal advice about the effect and consequences of proposed Consent Orders. For an amicable couple, this does not mean lawyers need to take over the negotiation.
You can have done much of the work already:
disclosure → balance sheet → scenarios → proposed agreement
and then use independent lawyers to help each person understand the legal implications of that agreement before it is finalised. That is very different from beginning the entire separation with two opposing legal positions.
Where Consent Orders fit in the Simplify process
At Simplify, Consent Orders are not where the process starts. They are much closer to where it finishes. Before an agreement is ready to be formalised, we want both people to understand:
The process is designed to move from:
information → clarity → options → advice → agreement →legal formalisation.
That means the legal documents reflect an agreement that has been properly worked through rather than attempting to solve the separation through legal drafting alone.
The short answer
If you have already reached agreement, that is an excellent position to be in. But you should still consider how that agreement will become legally final.
For many couples, Consent Orders provide a way to turn an agreed property settlement into binding court orders without having to litigate the separation.
This article provides general information only and is not legal advice. Family-law outcomes depend on individual circumstances. Different provisions can also apply to some de facto relationships, including in Western Australia. You should obtain independent legal advice about your own circumstances.