Consent Orders — the full FAQ

The basics

What are consent orders?

Consent orders are court orders made by the Federal Circuit and Family Court of Australia (or, for de facto matters in Western Australia, the Family Court of WA). They formalise an agreement between separating parties about property, finances, or parenting arrangements.

Unlike a Binding Financial Agreement, consent orders are filed with the court, which reviews and approves them against the "just and equitable" standard before sealing. Once sealed, the orders are enforceable as court orders — including through contempt of court proceedings.

What can property consent orders cover?

• Real estate — transfers, sales, payouts
• Bank accounts and savings
• Superannuation (via a super split)
• Motor vehicles
• Investments — shares, ETFs, cryptocurrency, precious metals
• Business interests
• Personal items of significant value
• The mortgage
• Personal loans, credit cards, car loans
• Tax debts
• Business debts

In short: the full asset and debt picture, divided clearly.

What can't consent orders cover?

• Future spousal maintenance claims. Consent orders can deal with property and current maintenance, but they can't extinguish a party's right to apply for spousal maintenance later. If you want that future right closed off, a BFA is required.
• Child support obligations. Child support is administered by Services Australia under separate legislation. A Binding Child Support Agreement (BCSA) is the binding mechanism — not consent orders.
• Parenting matters — not offered by Lawcaptain.

How are consent orders different from a BFA?

Most separated couples choose consent orders. They're cheaper, simpler, and they carry the protective weight of court approval. The BFA is the right answer when you want privacy, when the deal is outside what a court would approve, or when you want to lock out future spousal maintenance claims.

Do both of us need a lawyer?

No. For consent orders, only one party needs a lawyer. Your former partner can review the draft, comment, and sign without going to their own lawyer. They're entitled to get independent advice if they want to, and many do — but it isn't a legal requirement. The court approving the order is what protects both of you.

Eligibility and timing

Who can apply for consent orders?

Married or de facto couples who have separated. You need to:

• be separated (you don't need to be divorced)
• have reached an agreement (or be close to one) about how to divide the major assets and debts
• be in a qualifying relationship — married, or in a de facto relationship of at least 2 years (or with a child of the relationship, or with substantial contributions in shorter relationships)
• have assets and debts substantially in Australia

Do we need to be divorced first?

No. Consent orders can be filed before, during or after the divorce process. Divorce ends the marriage; consent orders divide the assets. They're entirely separate applications. See Divorce vs property settlement for the full picture.

Is there a time limit?

Yes — and it matters.

• Married couples: 12 months after the divorce order takes effect.
• De facto couples: 2 years from the date of separation.

After these deadlines, leave of the court is required to make a property claim, which adds cost and uncertainty. (Full detail: Time limits for property claims.)

Can consent orders be done after assets have already been informally divided?

Yes — but it adds complexity. The application reflects the current position of the asset pool, not the historical one. If significant assets have been spent or transferred since separation, the consent orders need to show what's actually being settled now, with the earlier division noted as background.

The fact that you've already informally split things does not remove your former partner's right to make a claim within the limitation period. Formalising the settlement is what closes that door.

The process

What is the process from engagement to sealed orders?

1. You agree on the terms with your former partner — the substantive deal.
2. The firm collects information from both parties (more on what's required below).
3. The firm drafts the consent order documents — the Application for Consent Orders and the Minute of Consent Orders (which sets out the actual deal).
4. Documents go to both parties for review.
5. Both parties sign. Wet signatures are required, but scanned-and-emailed copies are accepted by the court.
6. The firm lodges the documents with the court along with the court filing fee.
7. The court reviews the application on the papers. If satisfied, the court seals the orders and issues them.

How long does it take?

For a straightforward matter, drafting through to lodgement generally takes a few weeks once information has been provided. The court then reviews the application on the papers and the time to receive sealed orders depends on the court's current workload. More complex matters take longer at both stages. We can give you a clearer indication once we've seen your situation.

If the matter includes a super split, additional time is needed for the super fund to review the proposed split. Best practice is to run the super fund notice in parallel with drafting, so the wait time is absorbed rather than added on.

Do we have to attend court?

No. The application is decided entirely on the papers. No court attendance is required for property or super-related consent orders.

Once the documents are signed, how long do we have to lodge them?

90 days. If the signed documents aren't lodged with the court within 90 days of signing, a new set of documents with updated figures has to be prepared and re-signed. Don't sit on signed documents.

Can we use Amica or a similar government online service?

Amica is a government-backed online tool that can help simpler matters reach agreement and generate basic consent orders. For more complex situations — particularly anything that doesn't fit Amica's templates — a law firm can prepare the documents directly with more flexibility to reflect exactly what's agreed. If you've started with Amica and got stuck, we can take it from there.

Can we be self-represented and just have the firm draft the documents?

Yes. The firm can prepare the documents based on your agreement and provide the final files for you to lodge yourselves if you have an existing court file. You'd skip the firm's lodgement step and pay correspondingly less. Talk to us at intake about this option.

Can the firm take over a DIY application I've already started?

Yes. If you've filed a self-represented application and got stuck (often because the court has requisitioned the documents), the firm can step in. We lodge a Form 8 Notice of Address for Service to formally notify the court that a solicitor is now acting, then re-draft and re-lodge as needed. The existing court file number is retained.

What it costs

What does the firm charge?

Consent orders come in two packages:

• Essentials — fixed-fee, drafting-and-lodgement for amicable couples with simple matters: one or two properties, no super split, no business or trust, combined net assets under a certain threshold, and good communication between you.
• Full Service — more comprehensive, recommended (or required) for matters with trusts, SMSFs, larger asset pools, a BFA already in place, communication difficulties, or where the court has already raised queries on an earlier application.

The instant-quote tool tells you which package fits and shows the fixed price before you commit. See the pricing page for the current numbers.

What's the court filing fee?

A court filing fee is payable directly to the court at the time of lodgement. It's not part of the firm's package price. The amount is set by the court and reviewed annually — the current figure shows in your quote.

Are there other costs?

The two common ones:

• Super split — if super is being divided, additional work and a small uplift applies (the firm prepares the Regulation 144 notice, liaises with the super fund, and prepares post-order splitting documentation).
• Conveyancing or settlement-agent fees — if a property is transferring, you'll engage a separate conveyancer (or, in WA, a settlement agent) to handle the title transfer. Family-law firms don't do conveyancing. These fees are paid to the conveyancer directly, not to us.

What if the court sends a requisition?

A requisition is a query the court raises about the application — a concern about fairness, a question about wording, a missing piece of information. The court doesn't close the file; it asks you to respond. The parties respond, the court reviews again, and the cycle continues until the court is satisfied or declines to make the orders.

• On the Essentials package, handling a requisition is an additional cost — the package assumes the application sails through without queries.
• On the Full Service package, requisition-handling is included.

If you're not confident the application is straightforward, Full Service can be the more predictable choice.

What does a contested matter cost?

If the parties cannot agree and the matter goes to contested litigation, costs escalate significantly compared to an agreed settlement. Private mediation typically sits in between. Actual figures vary widely depending on the complexity of the matter, the firms involved, and how the dispute progresses, so we don't quote a number here.

We don't take contested property litigation; our focus is the agreed-deal end of the market. If your matter looks like it's heading to contest, we'll tell you and refer you to a litigator. (See Mediation and negotiation for the full picture of the dispute-resolution path.)

Are payment plans available?

In most cases, yes. Draft documents are not produced until the full package fee has been paid; partial payment starts the file and the balance can be cleared in instalments.

Can the other party's share of costs come out of their settlement payout?

No. Legal fees are paid before drafting commences — they can't be deducted from a future settlement payout by the firm.

Fairness, requisitions and court approval

Will the court approve any split we agree to?

No. The court must be satisfied the proposed settlement is "just and equitable" before making consent orders. It can't impose a different split, but it won't seal one it considers unjust. Splits of 55/45 or 60/40 are commonly approved where contributions weren't equal. Splits outside roughly 35/65 are unusual and need clear justification in the application.

If the deal you've agreed is materially outside what a court would approve, a BFA — which has no fairness review — may be the better instrument.

What if our agreement looks unequal on paper?

The court looks at the overall picture, not just the property split in isolation. Superannuation, debts, who's already received a cash payout, and context all factor in. An explanation can be included in the application to justify an asymmetric split — for example, where one party has already received a cash payout from a property sale and the remaining split balances things up.

What happens if the court raises a requisition?

The court doesn't close the file — it raises a concern and asks the parties to address it. The parties respond, the court reviews, and this can iterate multiple times until the court is satisfied or, in rare cases, declines to make the orders.

Can consent orders be set aside after they're sealed?

Yes, but only on limited grounds — fraud, non-disclosure of material assets, or duress. Provided both parties were honest, fully disclosed their assets, and weren't subject to duress, sealed consent orders are very difficult to challenge.

What does the independent legal advice checkbox on the application mean?

The Form 11 application asks whether the applicant has received independent legal advice about the current consent orders as drafted — not about general background advice obtained earlier. If you tick it, a certificate from a solicitor confirming the advice is required. On the Essentials package — which doesn't include legal advice on the substantive division — you'd indicate you haven't received ILA on the current orders. On Full Service, you have, and the certificate is provided.

Information and disclosure

What documents will we need?

For a property matter, the common requirements are:

• Marriage certificate (if married)
• Current certificates of title for any real property — obtainable from Landgate in WA, InfoTrak in NSW, or the equivalent in your state
• Super fund statements for any accounts being split (typically the two most recent annual statements plus a screenshot of the current balance)
• Any previous court orders or binding agreements from prior relationships (for disclosure purposes)

The firm provides a checklist at the start of the engagement.

Does my former partner need to provide financial information?

Yes. Both parties must disclose all assets and liabilities, which goes into the court form. Even in the Essentials package — where only one party engages the firm — your former partner's bank accounts, vehicles, super balances and other assets need to be included in the application.

What if my former partner won't provide their financial information?

Disclosure is a legal requirement. The court won't approve an application without evidence that both parties have made full disclosure. If the other party is uncooperative, options include making informal requests, serving formal disclosure notices, or — depending on the situation — considering whether the matter should proceed as a BFA, where the disclosure dynamic is different.

If the disclosure obstacle becomes a hard block, the matter may not be suitable for the Essentials package. Talk to us.

Are bank account details visible to the public once filed?

No. The consent orders application itself is not a public document. The Minute of Consent (the actual orders) is technically part of the court record, but it contains only the broad terms — "Party A retains sole ownership of [Property]" — without account numbers, balances or financial detail. Sensitive financial information isn't exposed through the public record.

What gets included — key clauses

Default sale clause

A default sale clause specifies what happens if the party who's supposed to refinance or take over a property can't do so within the agreed timeframe. It covers appointing a selling agent, the minimum acceptable sale price, responsibility for maintenance during inspections, and who bears sale costs. The clause only activates if someone misses the deadline.

In the Federal Circuit and Family Court of Australia, the default sale clause is mandatory. In the Family Court of WA, it's currently optional but advisable.

Indemnity clause

An indemnity clause makes the party retaining a property (and the mortgage) responsible for all mortgage payments going forward and indemnifies the departing party against any default. Without it, both parties remain legally liable to the bank even after the property is transferred. The retaining party must refinance the mortgage into their sole name within a specified timeframe — typically 30–90 days.

Exclusive right to reside

An exclusive right to reside clause grants one party the sole right to occupy the property, requiring the other to vacate by a specified date. Used when both parties have not yet physically separated.

Vacancy clause

A vacancy clause specifies that the party who is to vacate must do so within a certain number of days after settlement — for example, 30 days from a buyout completing. The clause prevents the outgoing party from remaining indefinitely after their financial interest has been extinguished.

Fixed dollar payout vs percentage of equity

A property payout can be expressed as a specific dollar amount or as a percentage of equity. Fixed amounts give certainty to both parties. Percentage-based payouts shift if the mortgage balance changes. For most situations, a fixed dollar amount is cleaner.

Flexible timeframes

Consent orders can include flexible windows rather than single fixed dates — for example, "the property is to be transferred between 6 and 12 months from the date of these orders" — to allow for refinancing conditions or sale timing.

Property transfer specifics

How long do we typically have to transfer or refinance a property?

The standard recommendation is 90 days for a single property, often with a further 90-day extension clause to provide breathing room if something goes wrong close to the deadline. For multiple properties, longer windows (six months or more) are often appropriate.

What stamp duty applies?

In most Australian states, property transfers under sealed consent orders are exempt from stamp duty — only a nominal administrative fee applies. This is one of the major financial benefits of formalising a settlement. The exact rule depends on your state; the conveyancer or settlement agent handling the transfer will confirm.

What about capital gains tax?

Transfers between spouses or former de facto partners under a court order qualify for CGT rollover relief. The transfer itself doesn't trigger CGT. The receiving party inherits the original cost base; CGT is only triggered when they eventually sell the asset to a third party.

The rollover does not apply to transfers into or out of trusts. Trust-related transfers need separate tax advice.

What does a conveyancer charge?

Conveyancing fees vary by state and complexity, and are set by the conveyancer or settlement agent — not by us. The party paying for the transfer is typically specified in the consent orders. For multiple-property settlements, costs are often split — each party pays the conveyancing for the property they're receiving.

What's cross-collateralisation and why does it matter?

Cross-collateralisation is where a single bank loan is secured over more than one property. If you bought a second property using equity in the first as security, both may be cross-collateralised. When the properties are divided between parties, the cross-collateralisation must be unwound by the bank — both properties need to be refinanced or restructured so each has its own standalone security. The settlement agent works with the lender to do this, but it can extend the settlement timeline.

Can we get bank pre-approval while the orders are being processed?

Yes. Bank pre-approval for the refinance can run in parallel with the consent orders process. Pre-approval is conditional only — the actual transfer and refinance can't be completed until the sealed orders are received — but arranging pre-approval in advance significantly reduces delays once the orders arrive.

Should we list the property for sale before the orders are sealed?

Generally, no. The firm recommends waiting until the consent orders are sealed before listing. If the property is listed and sold beforehand, the settlement proceeds need to be held — in the firm's trust account, or in a two-to-sign joint account that neither party can access unilaterally — until the orders are made and the split is confirmed. Releasing proceeds to one party before the orders exist creates risk if the agreement later falls through.

What if the property is in negative equity at the time of sale?

If the net sale proceeds don't cover the outstanding mortgage, the shortfall is a joint liability unless the consent orders specify otherwise. An order can be included setting out how a shortfall is to be shared.

Who's responsible for the mortgage between the orders and the transfer?

This is specified in the orders. Typically, the party retaining the property is solely responsible for the mortgage and all outgoings from the date of the orders until the transfer and refinance is completed.

Transferring overseas property

Australian consent orders bind the parties personally, but they don't have direct effect on foreign land title registries. An order requiring one party to transfer an overseas property is enforceable as a personal obligation — that party must take whatever steps are necessary under the local law of that country. Separate legal action in the foreign jurisdiction is typically required. The Australian orders provide the legal authority and the personal obligation, but they don't automatically change a foreign title.

Super splits inside consent orders

Can consent orders deal with a super split?

Yes. A super split can be included in consent orders. The super fund must be notified and given an opportunity to flag any issues before the orders are lodged. The firm sends the draft super-split provisions to the super fund via a Regulation 144 notice. The fund has up to 28 days by law to respond.

Are super splits structured in dollar amounts or percentages?

Either. A fixed dollar amount provides certainty for the receiving party but leaves market risk with the member if the fund value moves between order and processing. A percentage adjusts with the balance, sharing market risk between both parties. Talk to us about which suits.

Will the super split delay the consent orders?

It can — depending on how quickly the fund responds. Standard industry super funds (AustralianSuper, Hostplus, equivalent) typically respond within two to four weeks. SMSFs can take longer and add complexity. Best practice is to send the Regulation 144 notice as early as possible — ideally while the rest of the orders are still being drafted — so the wait runs in parallel rather than tacking time onto the end.

What happens after the orders are sealed if there's a super split?

The firm sends the court-stamped orders and "splitter" documents to the super fund. The fund then creates a new super account for the receiving party (or splits the balance into an existing account) and transfers the specified amount. This typically takes around 60 days. Some funds, particularly SMSFs, take longer.

Can a super split be used to give one party cash instead?

No — not through the splitting mechanism itself. A super split moves money between super accounts; it doesn't release cash. The money stays preserved in the receiving party's super until they reach preservation age. If you want one party to receive cash funded by the other's super, that party would need to withdraw it themselves (only possible if they've reached preservation age and met a condition of release) and pay it as a cash settlement.

Spousal maintenance in consent orders

What if I want to exclude future spousal maintenance claims?

If excluding future spousal maintenance matters to you, the safer route is a BFA with a waiver (set-off) clause — not consent orders. Consent orders cannot reliably extinguish a party's right to claim spousal maintenance in the future, so they aren't the recommended instrument for that purpose. (See Spousal maintenance explained.)

Disclosure obligations

Do all assets need to be disclosed?

Yes. Even sole-name bank accounts, vehicles, super, and personal property need to be disclosed — whether or not they're being divided. Full disclosure is a legal requirement for consent orders, and the court will not approve an application unless all financial information is included in the application form.

What happens if a party hides assets?

Non-disclosure is one of the grounds on which sealed consent orders can be set aside later. If undisclosed assets are discovered after the orders are sealed, the other party may apply to the court to reopen the matter. It can also constitute contempt of court.

Mediation and reaching agreement

Do we have to have already reached an agreement?

For consent orders to be drafted, yes — there has to be a clear agreement between the parties. The consent orders reflect what's been agreed. If agreement hasn't been reached, a legal consultation is the first step — to assess entitlements and options — and drafting only proceeds once agreement is confirmed.

If you've reached an agreement through mediation (Relationships Australia, an ex-judge mediator, or any other accredited mediator), that agreement can form the basis of consent orders. We take the mediated terms and prepare the formal application.

What if we mostly agree but disagree on small parts?

If you're close, often the disagreement closes quickly once a draft is in front of you. If the gap is wider, a negotiation engagement can be the right step — your lawyer takes over correspondence with the other party or their lawyer and works toward agreement on a weekly fee. Most matters reach agreement before mediation, let alone before court.

What if we can't reach an agreement at all?

Then consent orders aren't the right path — at least not yet. The options are negotiation, mediation, or as a last resort, contested court proceedings. We focus on the agreed end of the market; if your matter heads toward contest, we'll tell you and help you find appropriate representation.

Edge cases

What if our matter is too complex for the Essentials package?

The lawyer will tell you at the review stage. We can often still take it on at the Full Service price, or we'll refund you and explain what would fit — typically a BFA, a court application, or a referral to mediation.

Can we make a clause about who keeps the family pets?

Yes. An order can be drafted specifying which party retains a pet and requiring the other to sign any necessary transfer documentation. Most amicable separations handle pets informally, but the option is there.

Can we include a clause about who pays for ongoing household expenses?

The court can include interim outgoings provisions specifying who pays the mortgage and the bills between the date of the orders and the transfer. Ongoing post-separation informal cost-sharing arrangements generally don't fit comfortably in consent orders — the court prefers parties to be fully financially disentangled.

Can we keep a joint account open after the orders for children's expenses?

The preferred approach is for each party to maintain their own account for their share of children's expenses — that's the cleaner structure and the one we typically recommend. That said, we have had orders made before where the parties continue to operate a joint bank account for children's expenses, so it can be done. (Note: Lawcaptain doesn't offer parenting orders, but property orders touching on children's expenses are addressed.)

What if one of us is overseas?

The other party doesn't need to attend in person and doesn't need their own lawyer. They do need to sign the documents — but documents can be sent electronically, printed and signed overseas, and returned by scan. Geographic distance isn't a barrier to consent orders.

Can we file in any state's court?

For property matters, the application goes to the Federal Circuit and Family Court of Australia, which has national jurisdiction. Applications enter a national pool and may be allocated to any registry. The exception is Western Australia: WA couples (married and de facto) file in the Family Court of WA instead.

What is the WA de facto jurisdiction question?

WA has separate de facto property legislation. A WA court can only make de facto property orders if the relationship was substantially in WA, or there is real property located in WA. If a de facto couple's relationship had no substantial WA connection, the WA court does not have jurisdiction — in which case a BFA may be a better option, since a BFA is a private contract that does not depend on WA court jurisdiction.

Why use Lawcaptain for your consent orders?

Three reasons that matter.

• Fixed price, published in writing. You'll see the price before you commit. No hourly billing, no surprise invoices.
• From your couch. Enter your information online, at your own pace. Save and come back. No office visits.
• A real Australian family lawyer reviews every matter. The AI helps us go faster; the lawyer signs. If we don't think consent orders are right for your matter, you get a refund.