Most property settlements, whether they are made as a result of a marriage or defacto breakdown, are documented by a Consent Order.
Consent Orders should be applied for in circumstances where you wish to formalise an agreement that has been reached to make it binding on both parties. Consent orders apply to agreements about:
- the care, welfare and development of your children (known as parenting orders);
- the division of property between the parties or;
- maintenance for a former spouse or de facto spouse (known as spousal maintenance).
Unlike binding financial agreements, parties to a Consent Order are not required to seek independent legal advice before submitting a Consent Order to the Family Court of Australia, although it is best practice to do so.
It is important to note that Consent Orders have the same legal power as if they were orders decreed by a Family Court Judge or a Federal Court Magistrate and, consequently, are very hard to change if both parties don’t agree to make a change: particularly after the Consent Order has been approved by the Court. (Notwithstanding that if both parties agree to a change a new set of Consent Orders may be lodged)
Section 79A of the Family Law Act set outs the limited basis upon which the Court is able to set aside a final property settlement Order. Some of the more common grounds revolve around instances of an alleged miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information) and the giving of false evidence. This basically means that the other party lied about relevant assets or information. An example would be failing to disclose a secret bank account or a property owned in another jurisdiction.
While the grounds under s79A are quite clear, the evidence required to prove the ground is very specific and the onus lies on the person asserting that the information was false or incomplete.
That is probably why it is very uncommon that the Court sets aside final orders.
If you are considering trying to re-open a final property settlement, it is highly recommended that you seek legal advice about the evidence you have before taking any court action. The costs associated with such an application can be steep and in the event that you are not successful and in certain cases you may even be required to pay the opposing party’s legal costs.
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