Agreements and Consent Orders
Under the Family Law Act parties can make enforceable agreements about the care of their children, division of their property and payment of maintenance. Private agreements can become enforceable in a number of different ways. The easiest and most effective way is to make orders by consent. The Act does recognise two other types of agreements – both somewhat confusingly called maintenance agreements. One is a section 86 agreement and the other a section 87 agreement. These agreements are not used much now because of the introduction of simple consent order procedures.
It is very important to obtain legal advice before signing any type of agreement. Consent orders and maintenance agreements all have the effect of making private agreements enforceable as if a judge had made the orders.
Consent orders are orders of the Court, which are just as binding and enforceable as any order made after a final hearing. The major difference is that consent orders are based on the agreement reached between the parties. Consent orders can be made by applying to the Family Court on an ‘Application for Consent Orders’. It is preferable for parties to have had independent legal advice before agreeing to the terms of a consent order application and parties must be careful that the actual terms of the orders are in a proper legal form.
The Family Court will make the consent orders after a Registrar of the Court has looked at them and decided that they represent a just and equitable settlement of the property or are in the best interests of the children if they include parenting orders. Usually, if both parties have received independent legal advice, the Registrar will make the orders. If one or more of the parties do not have a lawyer, the Registrar may require additional information about the parties’ financial situation or parenting arrangements. Consent orders may also be made at any time during court proceedings when an agreement has been reached.
Pre-Nuptial Agreements/Binding Financial Orders
People who marry may want to document their agreement about future conduct, organisation of finances and/or property division during the marriage and in the event of a separation. Financial agreements made before marriage may be enforceable in the Family Court. Provided that the circumstances of the parties have not changed dramatically since the agreement was entered into and the agreement has been entered into after both parties have had independent legal advice in relation to a range of matters, then the Court may enforce the agreement. The Court will not enforce agreements where material changes in circumstances have occurred relating to a child of the marriage, or if conduct of one party to the agreement was fraudulent or unconscionable or the agreement is unenforceable. Pre-nuptial agreements may be particularly helpful if the marriage is a second one and children of the former marriage exist. It is strongly recommended that each party receive independent legal advice prior to signing any agreement.