In most cases when people reach a property agreement, we recommend that they formalise it by Consent Orders. Consent Orders are made by a Registrar of the Court. That process happens ‘in Chambers’, so it is an administrative process that doesn’t require an attendance.
When you file your Consent Orders, there’s an application form that must be filed with the Orders (creatively called an ‘Application for Consent Orders’) that needs to be filled out completely for the Court to make the Orders. If there are already property settlement proceedings on foot you don’t need to file the Application for Consent Orders.
Often, people agree that their bank accounts or cars or superannuation will be kept out of their settlement. However, even in those circumstances, they are still required to complete the entirety of the Application for Consent Orders, which requires you to include all your property at the current value. That extends to full disclosure about your income and expenses, assets, liabilities and superannuation, whether you’ve ‘included’ it in your deal or not.
The reason for this is so that the Court can be satisfied the deal is ‘just and equitable’ overall. The Court must be satisfied of that before it can make the Orders sought, even if the Orders are made by agreement.
For example, if you and your spouse have agreed to split the equity in your house 50/50 that might be fair, but if one of you has 10 times the super the other one does, then that’s almost always a relevant consideration. The Court needs all that information to be satisfied that the overall deal is an appropriate one taking into account all of the property and each party’s financial circumstances.
Our experience is that quite often, the process of fully completing the Application for Consent Orders has the effect of informing the other party of something they didn’t know previously, and sometimes that can derail an agreement at a late stage, which is a big setback. It’s important that you and your lawyer discuss a strategy for dealing with this if it is a concern for you.
Otherwise, when your lawyer asks you for information beyond what you’ve agreed, this is probably why and it doesn’t (always) mean your lawyer hasn’t understood you or is overcomplicating your settlement. Nine times out of ten ‘getting’ the agreement is much harder than documenting or formalising it but sometimes those final stages need to be very carefully considered.
If we can help you with your property settlement, let us know.
Article By: Adam Bak
Adam joined the firm in 2006. Since then Adam has established himself as one of our leading litigation lawyers and has run some of the firm’s biggest cases, in both parenting and property matters. He became a director of the firm in 2013. While he now tries to help his clients reach agreement wherever possible he still regularly appears in Court and is one of our best advocates. Adam has a particular interest and expertise in cases involving businesses, corporate structures and valuation issues.