Consent orders are one of the most effective and commonly used tools in Australian family law to formalise agreements reached after separation. From a solicitor’s point of view, they offer a structured, enforceable, and relatively efficient pathway to resolve both parenting and property disputes without the need for contested litigation.
This article explains what consent orders are, their legal requirements, applicable timeframes, and the step-by-step process involved in obtaining them.
What Are Consent Orders?
Consent orders are legally binding orders made by the Court with the agreement of both parties. Rather than a judge deciding the outcome after a hearing, the parties agree on the terms and ask the Court to approve them.
They are governed by the Family Law Act 1975 and made through the Federal Circuit and Family Court of Australia.
Consent orders are typically used for:
- Property settlements (division of assets, liabilities, and superannuation)
- Parenting arrangements (living arrangements, time spent with each parent, decision-making)
Once approved, they have the same legal force as court orders made after a trial.
Why Solicitors Recommend Consent Orders?
From a legal practitioner’s perspective, consent orders are often the preferred option because they:
- Avoid costly and time-consuming litigation
- Provide certainty and enforceability
- Properly finalise financial relationships (preventing future claims)
- Allow parties to retain control over the outcome
Independent Legal Advice and Representation in Consent Orders
In Australia, while consent orders made under the Family Law Act 1975 and approved by the Federal Circuit and Family Court of Australia do not legally require both parties to obtain independent legal advice, it is strongly recommended from a solicitor’s perspective to ensure fairness, proper understanding of rights, and to minimise the risk of the orders being set aside in the future; importantly, one solicitor cannot represent both parties in a family law matter due to conflict of interest obligations under professional conduct rules governed by bodies such as the Law Council of Australia, as a solicitor owes a duty to act in the best interests of their client and cannot simultaneously advise two parties whose interests may diverge, even in amicable situations, and therefore the usual and accepted practice is that one solicitor acts for one party only (often preparing the Application for Consent Orders and Minute of Orders), while the other party is either unrepresented or obtains independent legal advice, with clear disclosure provided that the solicitor does not act for them and that they are encouraged to seek their own legal advice before signing.
Legal Requirements for Consent Orders
Before approving consent orders, the Court must be satisfied that certain legal requirements are met.
- Genuine Agreement
Both parties must:
- Freely agree to the terms
- Not be under duress, coercion, or undue influence
- Understand the effect of the orders
- Proper Drafting
Orders must be:
- Clear and precise
- Capable of enforcement
- Structured in accordance with Court requirements
Poorly drafted orders are a common reason for delay or rejection.
- Just and Equitable (Property Matters)
For property settlements, the Court must be satisfied that the agreement is fair.
Solicitors ensure:
- Full and frank financial disclosure has occurred
- The division reflects contributions and future needs
- The outcome is reasonable in the circumstances
- Best Interests of the Child (Parenting Matters)
For parenting orders, the Court applies the best interests of the child principle as codified in Section 60CA of the Family Law Act 1975, including:
- Protection from harm
- Benefit of a meaningful relationship with both parents
- Practicality and stability of arrangements
- Supporting Documentation
A consent order application typically includes:
- Application for Consent Orders
- Minute of Proposed Orders
- Financial details (for property matters)
Timeframes You Must Know
Time limits are a critical aspect of family law practice.
Property Settlement Time Limits
Under the Family Law Act 1975:
1) Married couples: Must apply within 12 months of the divorce becoming final
A divorce becomes final: 1 month and 1 day after the divorce order is made
2) De facto couples: Must apply within 2 years of separation
3) If You Miss the Deadline: You must seek the Court’s permission (“leave”) to proceed out of time. The applicant must show that hardship would be caused if permission is refused. This is not easily granted, which is why solicitors treat limitation periods very seriously.
Parenting Matters
There is no strict time limit. However, delays can affect outcomes, as the Court may favour existing arrangements
Court Processing Time
After filing in the Federal Circuit and Family Court of Australia:
- Typically, 2 to 6 weeks for approval
- Delays may occur if Orders are unclear, Further information is required and the matter is complex
Step-by-Step Process (Solicitor’s Workflow)
Step 1: Initial Instructions
The solicitor:
- Takes detailed instructions
- Identifies key issues (assets, liabilities, children)
- Provides preliminary legal advice
Step 2: Negotiation
Resolution may occur through:
- Direct negotiation
- Lawyer correspondence
- Mediation or family dispute resolution
Step 3: Financial Disclosure
Each party must provide:
- Bank statements
- Tax returns
- Superannuation balances
- Property valuations
This step is critical failure to disclose can result in orders being set aside.
Step 4: Drafting the Orders
The solicitor prepares:
- A Minute of Consent Orders
- Ensures legal accuracy and enforceability
Step 5: Preparing the Application
Includes:
- Background information
- Financial summary
- Justification for the proposed division (property matters)
- Parenting considerations (if applicable)
Step 6: Client Advice and Signing
- The solicitor explains the legal effect of the orders
- The client reviews and signs the documents
Step 7: Filing with the Court
- Documents are filed electronically
- Filing fees may apply
Step 8: Court Review
A Registrar reviews the application to ensure:
- Property orders are just and equitable
- Parenting orders are in the child’s best interests
Step 9: Orders Made
If satisfied:
- The Court seals the orders
- They become legally binding and enforceable
If not:
- The Court may request amendments or refuse the application
Key Risks and Practical Insights
From a solicitor’s perspective, the most common issues include:
- Inadequate Financial Disclosure- May lead to orders being overturned later
- Poor Drafting- Can result in unenforceable or ambiguous terms
- Missing Time Limits- May prevent a party from making a claim entirely
- Unfair Agreements- The Court may reject the application
Consent orders can provide separating parties with a clear, legally binding and practical way to finalise property or parenting arrangements without the stress and expense of contested court proceedings. Because every matter is different, it is important that any proposed agreement is properly drafted, fair and suitable for your circumstances.
At JHV Lawyers, our team can assist with advice, negotiations, preparing consent order documents and guiding you through the court filing process.
Sonali Tandon
JHV Lawyers