Who prepares the terms of a Consent Order?

Who prepares the terms of a Consent Order

It is important that your Consent Orders, whether they deal with property matters or matters pertaining to the future care arrangements for your children, are drafted in a way that makes them unambiguous and set out in a way that makes them legally binding and enforceable. You will find that if you submit proposed Consent Orders to the Family Court and they are not drafted in a way that enables the Court to enforce them, the Court will reject them and ask them to be resubmitted. The idea is that if one party does not follow the Consent Orders, the other party must be able to take the matter to Court and ask the Court to enforce the Consent Orders. If the Consent Orders are not capable of enforcement, then the Court will not be able to enforce them for you. Accordingly, although some people draft their Consent Orders, it is not generally recommended. A good lawyer will draft Consent Orders in a way that ensures that they will cover all scenarios and leave no room for ambiguity. Well-drafted Orders also ensure that everything is covered and nothing is accidentally left out, which can lead to a situation arising down the track where one party is left in a position where they can’t enforce the Consent Orders because they were not properly drafted or because something was inadvertently left out.

In broad terms, there is usually a good reason to get a plumber to do your plumbing or an accountant to do your tax return. The same reasons you’d get professionally qualified people to assist with other aspects of your life apply to getting a lawyer to draft your Consent Orders. Poorly drafted Consent Orders can see you having to make a court application to rectify something improperly done. The matter can end up being far more expensive and protracted than it could have been if the documents had been drafted correctly in the first place.

Does each party need to obtain independent legal advice for Consent Orders?

Whilst it is always a good idea to obtain legal advice prior to signing off on Consent Orders, it is not mandatory. Many people are in a situation where they have reached an agreement with a former partner that they are happy with, and they do not wish to obtain advice in relation to what might otherwise happen were the matter to proceed to Court and be contested. In some instances, it is, unfortunately, the case that having a solicitor can result in the matter becoming protracted, as lawyers providing advice are always very careful to ensure that all bases are adequately covered. For many people, their agreement, or the fact of their having reached an agreement, is a fairly simple matter, and they simply wish to get on with things and not have the delay that can sometimes arise when both parties retain legal representation. Some people have struggled over a lengthy period just to get to the point where they have an agreement with the other person, and they don’t wish to see a solicitor get in the way of that, which unfortunately can happen.

Some people get independent legal advice before sitting down with their former partner and discussing their property settlement outcome or proposed parenting Consent Orders, with both parties having had the benefit of legal advice. They then don’t seek advice in relation to the proposed Consent Orders once drafted but are satisfied that they have obtained the information that they need in order to make informed decisions about the outcome.

It should be noted in this regard that Consent Orders are very different to a binding financial agreement in that whilst both documents finalise a property settlement between separating parties, both parties are required to obtain independent legal advice prior to signing off on a binding financial agreement whereas neither party is required to obtain independent legal advice prior to signing off on Consent Orders.

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