The recent divorce between Wang Xiaofei and Barbie Hsu (Big S) has been making headlines everywhere. In the official divorce announcement, the couple stated that they “have decided to amicably dissolve the marriage and have recently completed the relevant procedures” and  “will jointly raise their children and give them all the love and companionship they need”.

Divorce often seems synonymous with misfortune, tragedy, and endless arguments, disputes, and even lawsuits. Yet as people develop a deeper understanding of marriage and relationships, the end of a relationship is not necessarily the fault of either party.

Divorce therefore does not have to mean conflict — a relationship can end peacefully. Both parties can reach agreements on future arrangements for property and children.

In Australia, in addition to the Binding Financial Agreement we have covered in previous articles, there is another non-litigation option: the parties can apply to the court for a Consent Order, giving their agreement full legal effect.

What is a Consent Order?

A Consent Order is a written agreement that has been approved by the court.

How is a Consent Order different from a Binding Financial Agreement?

Both are legally binding.

However, a Binding Financial Agreement can only cover the financial arrangements between the parties, whereas a Consent Order can cover not only the division of property but also arrangements for the care of children.

Advantages of applying for a Consent Order

First, a Consent Order can cover both property and parenting arrangements at the same time.

Second, unlike litigation, a Consent Order reached by agreement largely reflects the wishes of both parties.

This is because in litigation, the outcome rests entirely with the judge, who can only allocate property and parenting rights based on the evidence presented. With a Consent Order, however, the parties can discuss matters, put forward their own views, and arrive at a conclusion together.

Another advantage is cost.

As is well known, legal fees, court appearance costs, and various application fees in litigation add up to a significant sum. With a Consent Order, the parties are spared these expenses, which ordinary people would struggle to afford.

A further benefit is saving time.

In litigation, the parties must wait a long time before a judge decides their case. With a Consent Order, the parties simply upload the documents to the Federal Government’s website. Once approved, the order quickly takes legal effect. This means that if one party fails to comply with the agreed terms or obligations, the other party can apply for a court enforcement order to ensure the Consent Order is carried out.

Disadvantages of a Consent Order

First, compared with a Binding Financial Agreement, a Consent Order requires more detailed information — the court will require full and thorough financial disclosure from both parties, which takes longer.

Second, the court requires a degree of fairness and will rarely accept a “walk away with nothing” outcome. If the court considers the agreement unfair, it may amend the Consent Order. A Binding Financial Agreement, by comparison, allows greater freedom and is equally legally binding.

In addition, because a Consent Order involves the court as a third party, there will be corresponding application fees and an approval period.

Is there a time limit for submitting a Consent Order?

An application for a Consent Order can be made at any time after separation, but it should be lodged within 12 months of a divorce or within two years after the end of a de facto relationship.

If you apply outside this timeframe, you will need to seek the court’s leave before filing your application. You can do this by first seeking leave.

Categories of Consent Orders

The orders you seek in relation to your children, finances and property, or spousal or de facto partner maintenance will depend on your family’s circumstances. You should obtain legal advice on which orders to apply for.

Generally, the Consent Orders the court can make fall into two categories: parenting orders and financial orders.

Summary

A relationship that has failed can still resolve questions of property and parenting in a peaceful way.

However, to ensure that the Consent Order is fair, obtaining legal advice is essential.