When it comes to family separation, reaching amicable decisions on how the two parties will divide property is possible without going to court. A consent order is a written agreement that sets out the orders that a court can make regarding your joint and individual property. It’s worth noting that consent orders can be used to decide how parents will care for their children after a family separation as well as for maintenance payments. Although some principles are similar, we focus our attention below on consent orders that deal solely with property to help assist with deciding whether it is appropriate for you and your family.

What is a Consent Order?

A consent order is, in essence, a set of written orders a court makes based on mutually agreed on terms of both parties. For property matters, the court will only make the orders if it is satisfied that the order would be considered “just” and “equitable” in the circumstances. The court can make the orders for both marriage and de facto relationship separations.

Consent orders differ from financial agreements as the court will need to approve the orders using the criteria of being “just” and “equitable”. Financial agreements may not require the court’s approval, however, they must nevertheless satisfy the criteria for creating a binding financial agreement (including the requirement of individual legal advice).

How do I Know if I Should Apply for a Consent Order?

After separation, a consent order can provide you with clarity on how property can be divided. However, it can only be used if both parties agree to the orders, otherwise, the court will need to get involved to determine how property will be divided. This is a litigious process and is best avoided if both parties can negotiate agreeable terms.

The alternatives to a consent order include:

  • Go to court and allow the court to make a decision on how assets will be divided;
  • Draft a financial agreement (as described above);
  • Separate assets informally without any court or legal involvement.  

The last option may leave both parties at risk of having the other party commence proceedings in court at a later date.

What is “Just” and “Equitable”?

Although you may reach an agreement on how property is divided, the court will still need to give its tick of approval before making an order. Three overarching principles will help the court decide if the order you request is just and equitable, including:

  • Determining the property and debts of both parties, owned either individually or jointly;
  • Looking at direct and indirect financial contributions the parties have made; and
  • Considering the future requirements of the parties (e.g. earning capacity, parental commitments, health, etc.)  

Although the court must decide on whether an order is just and equitable on a case by case basis, when coming to an agreement you should also take these factors into consideration.

What Property Does the Consent Order Need to Include?

Although already implied, it must be reinforced that parties need to make the orders by consent. A factor that ensures parties have provided consent is disclosing your financial circumstances (i.e. all of you assets and debts). Rule 13.04 of the Family Law Rules 2004 sets this out, stating that parties must make “full and frank disclosure”.

If you are unsure of what would be considered property, this list should provide you with an idea:

  • Earnings;
  • Real property;
  • Assets;
  • Shares; and
  • Interest in trusts.

If parties do not disclose all assets and debts, the consent order faces the risk of being set aside in the future. You will only be required to attend court upon request.

How Do I Apply for a Consent Order?

The Family Law Rules 2004 set out the requirements for applying for a consent order. The parties will need to complete an application form, but also provide the court with a copy of the orders that they would like made. There are time restrictions that set out when a consent order can be applied for (e.g. within 12 months of a divorce for married couples or within 2 years of the relationship breakdown for de facto couples).


Applying for a consent order is an option for many couples who have separated and can come to a decision as to how to divide property. As noted above, there are other options in reaching a property settlement so it is important to make an informed decision based on your circumstances.

Please note that LegalVision is a commercial law firm and cannot assist with family law matters.

COVID-19 Business Survey
LegalVision is conducting a survey on the impact of COVID-19 for businesses across Australia. The survey takes 2 minutes to complete and all responses are anonymous. We would appreciate your input. Take the survey now.

About LegalVision: LegalVision is a tech-driven, full-service commercial law firm that uses technology to deliver a faster, better quality and more cost-effective client experience.

The majority of our clients are LVConnect members. By becoming a member, you can stay ahead of legal issues while staying on top of costs. For just $199 per month, membership unlocks unlimited lawyer consultations, faster turnaround times, free legal templates and members-only discounts.

Learn more about LVConnect

Kristine Biason
Our Awards
  • 2019 Top 25 Startups - LinkedIn 2019 Top 25 Startups - LinkedIn
  • 2019 NewLaw Firm of the Year - Australian Law Awards 2019 NewLaw Firm of the Year - Australian Law Awards
  • 2020 Fastest Growing Law Firm - Financial Times APAC 500 2020 Fastest Growing Law Firm - Financial Times APAC 500
  • 2020 AFR Fast 100 List - Australian Financial Review 2020 AFR Fast 100 List - Australian Financial Review
  • 2020 Law Firm of the Year Finalist - Australasian Law Awards 2020 Law Firm of the Year Finalist - Australasian Law Awards
  • Most Innovative Law Firm - 2019 Australasian Lawyer 2019 Most Innovative Firm - Australasian Lawyer
Privacy Policy Snapshot

We collect and store information about you. Let us explain why we do this.

What information do you collect?

We collect a range of data about you, including your contact details, legal issues and data on how you use our website.

How do you collect information?

We collect information over the phone, by email and through our website.

What do you do with this information?

We store and use your information to deliver you better legal services. This mostly involves communicating with you, marketing to you and occasionally sharing your information with our partners.

How do I contact you?

You can always see what data you’ve stored with us.

Questions, comments or complaints? Reach out on 1300 544 755 or email us at info@legalvision.com.au

View Privacy Policy