Consent orders: things to keep in mind

Consent orders are prepared by whom?

For your Consent Orders to be legally binding and enforceable, they should be drafted in a manner that makes them unambiguous and set out in such a way that they are enforceable in the future. If you submit proposed Consent Orders to the Family Court and they are not drafted in a way the court can enforce, the court will reject them and ask you to resubmit them. If one party does not follow the Consent Orders, the other party can take the matter to court and ask the court to enforce the Consent Orders. The court cannot enforce your Consent Orders if they are not enforceable.  Although some people draft their Consent Orders, it is not generally recommended. Consent Orders should be drafted to cover all scenarios and leave no room for ambiguity. Having well-drafted Orders also ensures that nothing is accidentally left out, which can lead to a situation where one party may not be able to enforce the Consent Orders because they were not properly drafted or something was inadvertently left out down the road.

In general, there are usually good reasons to hire a plumber for your plumbing or an accountant for your tax return. You would hire a lawyer to draft your Consent Orders for the same reasons you would hire a professional for other aspects of your life. Consent Orders that are poorly drafted can result in you having to file a court case to rectify something that was not done correctly. The matter can become much more expensive and protracted than if the documents had been drafted correctly.

Is independent legal advice required for Consent Orders?

Legal advice is always a good idea before signing off on Consent Orders, but it is not mandatory. In many cases, people have reached an agreement with a former partner that they are happy with and don’t need advice about what might happen if the matter went to court and was contested. As lawyers are always careful to ensure that all bases are adequately covered, having a solicitor sometimes can result in the matter becoming protracted. It is common for people to simply want to get on with things and not have the delays that can sometimes occur when both parties retain legal representation after reaching an agreement or knowing they have reached an agreement. Some people have struggled for a long time just to reach an agreement with the other person, and they don’t wish a solicitor to hinder that process, which unfortunately can occur.

Before discussing their property settlement outcome or proposed parenting consent orders with their former partner, some people obtain independent legal advice.  They then don’t seek advice about the proposed Consent Orders, once drafted, but are satisfied that they have obtained the information they need to make informed decisions about the outcome.

The difference between a Consent Order and a binding financial agreement is that, while both documents finalize a property settlement between separating parties, Consent Orders require independent legal advice before signing a binding financial agreement. Still, neither party is required to obtain independent legal advice before signing a Consent Order.

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