Are Consent Orders Legally Binding?
Yes, Consent Orders are legally binding, in the same way as any Order made by the Court.
The Court must approve a Consent Order for it to become legally binding. Your agreement must be reviewed and "sealed" by a Court Registrar, which can only happen if:
Your property settlement agreement is just and equitable, based on the overall percentage division, including superannuation; or
The agreed parenting arrangements are in the best interests of the child or children.
Once a Consent Order is made by the Court, it is enforceable by law, which means that there are legally enforceable obligations placed on you and your former partner. Consent Orders are designed to provide a final resolution. They are difficult to change once made, except in limited circumstances such as a significant change in a party's situation.
If one party fails to comply with their obligations, then the other party can apply to the Court for enforcement. Enforcement of a Court Order is not always a straightforward process, for example, if you seek to enforce an order for the sale of real estate. There are steps you can take to make the enforcement process easier and less costly:
Include 'default clauses' for the sale of real estate or other assets in the event that your former partner does not comply with an obligation to pay money, discharge a mortgage or transfer an asset to you.
Include a Section 106A order, which states that a Registrar of the Court can sign any document on behalf of your former partner if they choose not to comply with an order, for example to transfer or sell real estate or another asset, or to discharge a mortgage.
Make sure that the Consent Order is properly worded to impose obligations on your former partner to do all things and sign all documents necessary to comply with each order.
Consent Orders are different from other types of agreements:
Parenting Plans: written agreements between parents about the care arrangements for children, which are not legally binding or enforceable by the Court.
Binding Financial Agreements (BFA): private contracts to formalise a property settlement agreement, which do not require approval of the Court.
Informal Agreements: verbal or written agreements, which have not been formalised by the Court are not legally enforceable.
