Consent order

Consent order

A consent order is an order of the court made with the consent of both parties (as opposed to an order made by a judicial officer independently of the parties’ consent).

Most family law matters are resolved by way of a consent order.

Generally a consent order will be in writing, it will include all relevant details, including details of mechanics and timing for compliance, it will be signed by both parties and (generally) signed by both parties’ solicitors or representatives.

If a property consent order is properly drafted and made following advice and full and frank disclosure of both parties’ financial circumstances, it will be very reliable. For the court to make a consent order and for it to be reliable (or as reliable as it can be), the court must be satisfied that each party has made full and frank disclosure, that each party has received independent advice about the operation of family law and that the order is just and equitable. Satisfying these requirements can usually be done by completing documents setting out each party’s financial circumstances and evidence of advice. Court attendance is not generally necessary for consent orders.

(See also When an order can be set aside (section 79A).)

Consent orders relating to children can change but, most often, this would occur only where there has been a significant change in circumstances since the last order.

  • When an order can be set aside (section 79A)

Section 79A of the Family Law Act provides for a property order (including a consent order) to be set aside where “there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance”.

The section also makes provision for circumstances where:

  • carrying out an order has become impractical;
  • a person is in default and it is just and equitable to vary the order;
  • exceptional circumstances exist relating to a child; and
  • in the case of a proceeds of crime order.

Orders relating to children can be varied at any time but, most often, this would occur only where there has been a significant change in circumstances since the last order.