FAQs - Family Law Consent Orders - Property and Parenting

Consent Orders are Orders made by the Federal Circuit and Family Court of Australia, where parties have agreed about how they would like to split their property after separation.

For more information on Consent Orders please download a fact sheet here.

In Australia parties who have been married or were in a de-facto relationship are encouraged to formally end their financial relationship by dividing their assets, liabilities and superannuation when their relationship ends. 

‘Property’ refers to all assets and liabilities owned by both parties and is  considered regardless of whose name the property is registered in. Property can include, but not limited to: real property (eg house), businesses, trusts, shares, vehicles, furniture, investments, and superannuation. 

Property settlement also considers property owned before the relationship or acquired after separation.

Under the Family Law Act 1975, Superannuation is considered property. It is included in the wider asset pool. It is not compulsory to split or equalise superannuation. 

Superannuation splitting laws govern how Superannuation splitting is conducted.

There are three options for splitting superannuation:

1. A formal written agreement;
2. Consent orders; or
3. A court order.

It is prudent to finalise your financial relationship with your ex-partner as soon as possible to avoid them making claims later, and to protect yourself from being liable for liabilities/debts that your ex-partner might accrue in the future. 

If both parties have agreed, the best way is through an Application for Consent Orders. The application is made to Federal Circuit and Family Court of Australia who then formalises the agreement into orders if they are deemed fair by the court.

Another option to formalise a property settlement is through a binding financial agreement. This agreement does not require the court’s approval, however, it does require legal advice, preferably from an independent law firm.

A married couple must apply for a property settlement within 12 months of a divorce finalisation, whereas a de-facto couple must apply within two years of separation.

If you think you are outside of these time limits, please contact us to discuss.

If negotiations and mediation fail, you can apply to the Family Court for a property settlement order. This step involves appearing in court to present your case and allowing the court to determine the split.

Following a separation, Section 79 of the Family Law Act 1975 determines the division of property in the following four-step process:

1. Calculate the net assets, liabilities and superannuation.

2. Consider any financial contributions of each party to the relationship. For example:

• Financial contributions including wages and windfalls.
• Non-financial contributions such as the duties performed by the parents  involved in raising the children, contributions to household duties.
• Non-financial contributions that have resulted in the increased size of the asset pool, for example renovations to the house.

3. The party’s future needs, including health issues, caring for children, and the ability to earn an income.

4. The court assesses whether the proposed settlement is fair considering the factors above.

There is no one answer as every circumstance is different. It is important that you seek legal advice so you can fully understand your options and decide what is best for you.

If your matter goes to Court, the property is calculated as at the date of the court proceedings, not the date of separation. This means any property and debt acquired by either party after the separation will be considered.

A lot of people believe that each party will automatically receive a 50/50 split of the assets once they have been married. People also believe that if a property is in their name then their ex-partner does not have any entitlement to the property. Neither of these are true. 

A property pool will include all assets of the parties regardless of who legally owns the asset or who the asset is registered to.

It is best to seek legal advice on your specific circumstances before making any decisions regarding the split of the asset pool.

On average, most divorce settlements in Australia result in one party receiving between 50-65% of the total asset pool. 

A higher split eg 70/30 is less common but can occur if one party has made more significant contributions.

ACM Legal offer fixed fees for Consent Orders to be drafted, filed and served. 

Our fixed fees are:

Property Consent Orders $5,500

Property Consent Orders including Superannuation split $5,900

Parenting Consent Orders $4,400

Property and Parenting Consent Orders (combined in one application) $5,900

*disbursements such as court filing fees and title searches are additional and charged at cost*

If we have not covered one of your questions regarding property settlement after separation, please contact us. Our team of experienced family lawyers can also help you with any questions or concerns related to divorce and separation, mediation, parenting matters and adult child maintenance.