(07) 3862 1955
It’s one of the most common questions we hear from clients at Brisbane Family Law Centre, often after some big decisions have already been made.
You and your former partner may have separated amicably. You may have had sensible, respectful conversations about property. Perhaps you’ve agreed that each of you will keep a home, or that one person will buy the other out, and you’re now focused on getting the paperwork done so you can both move forward.
Then someone, often a conveyancing lawyer or accountant, asks a simple question: “Do you have Consent Orders?”
For many people, that’s when doubt creeps in. You thought everything was already sorted. You’re not in conflict. You don’t want to overcomplicate things or spend money unnecessarily. And yet, something about that question lingers.
The very common shortcut after separation (spoiler: this isn’t a good idea!)
Here’s a version of the scenario we see surprisingly often.
A couple separates on relatively good terms. They’re both working, financially independent, and keen to avoid unnecessary conflict. They sit down together and agree that each will keep one property. It feels fair at the time, and they’re both comfortable with the arrangement.
They engage a conveyancer to transfer the properties, finalise the paperwork, and then move on with their lives. The divorce is granted. Everyone assumes the financial chapter is closed.
At the time, this feels like the most efficient and cost-effective way to handle things, especially when the alternative sounds like “getting family lawyers involved” and paying unnecessary legal fees.
The problem that can surface later
But… a few years later, things don’t look quite the same.
One property has turned out to be far more expensive to maintain than expected. The other has increased significantly in value. One person’s financial circumstances have changed, while the other’s have improved. With hindsight, the original agreement you and your former partner reach no longer feels balanced.
That’s when the past might get reopened.
One person may raise concerns about fairness and begin asking for the property settlement to be reconsidered. And this is usually the moment people learn, with genuine surprise, that because there were no Consent Orders in place, the law may still allow those financial issues to be revisited, even though property was transferred and the divorce was finalised.
What that can mean in practice is starting again: reconsidering all assets, liabilities and superannuation based on what each of you own now– not what existed at separation, but what exists today.
Why transferring property isn’t the same as finalising finances
This confusion is completely understandable.
A conveyancing lawyer’s role is to legally transfer property. They do that job well. But conveyancing does not finalise your financial relationship under the Family Law Act.
From a family law point of view, even if:
- property has been transferred
- the divorce is final
- everyone believed the agreement was “done”
a person may still be able to bring a property settlement claim if finances were never formalised.
Generally, only two mechanisms properly finalise financial matters:
- Consent Orders, approved by the Federal Circuit and Family Court of Australia; or
- A Binding Financial Agreements (BFA), being a privately signed contract between you, in which you both require independent legal advice.
Without one of these, financial ties can remain open far longer than people realise.
(We mainly focus on Consent Orders in this blog, but if you want to explore a BFA, please reach out to us so we can chat you through both of these options and how they apply to you!)
Trying to save money can cost more in the long run
Most people who skip Consent Orders aren’t being careless. They’re trying to be sensible.
They trust each other. They’re cooperating. They don’t want conflict. And they don’t want to spend money on legal fees when they believe they already agree.
But in practice, that upfront cost often becomes an insurance policy that protects against legal fees, financial and emotional stress, and uncertainty many times greater if issues arise later.
Early legal advice is not about creating conflict. It’s about creating certainty.
Consent Orders offer more than just protection
Consent Orders aren’t only about preventing future claims. They also offer important practical benefits, particularly for property settlements. For example-
- There are transfer duty (stamp duty) exemptions for property transfers made pursuant to Consent Orders, which can represent significant savings.
- Consent Orders provide a clear authority for conveyancers, banks, and financial institutions to act, including enforceable timeframes which reduce delays when refinancing or discharging mortgages.
- They provide a formal record of how property was divided and why, which can be relied upon to prevent any future claims down the track.
- Consent Orders ensure a clean financial break between you and your former partner, allowing both parties to move forward independently.
For many clients, these benefits alone justify formalising the agreement properly.
What is the Consent Orders process?
The Federal Circuit and Family Court of Australia provide do-it-yourself Consent Order kits on its website, and for some people these kits can be a helpful starting point.
However, the risk with self-prepared documents is not usually whether they are accepted by the Court, it’s whether they:
- Accurately reflect the agreement reached;
- Properly deal with all assets, liabilities, and superannuation;
- Protect you from future claims; and
- Are workable in practice with banks and conveyancers.
As such, we often assist clients who already agree on outcomes, but want to ensure the documents are prepared correctly and with the future in mind.
The typical process looks like this:
- You obtain advice about your legal position and proposed agreement;
- The Consent Orders are drafted to accurately reflect that agreement;
- The application is lodged with the Court;
- If the Court considers the agreement just and equitable, the Orders are approved (often without either party needing to attend court).
When matters are agreed, this process is usually far more straightforward (and affordable) than people expect.
“But we trust each other”
This isn’t about mistrust.
It’s about recognising that life is unpredictable. People change. Circumstances change. Property markets change. What feels fair today can feel very different years later, especially when unexpected problems arise.
Consent Orders don’t assume bad intentions. They simply acknowledge that agreements reached at separation deserve to be properly documented, while everyone is still aligned.
Final Thoughts
If you’re planning to sell or transfer property after separation, or if you’ve already done so without formalising your financial agreement, it’s worth pausing and getting advice before assuming everything is settled. Even if you don’t have a property and are in the process of dividing your assets, it is important to get this same advice to protect you and your future interests in property and other assets which you may acquire in the future!
Getting advice now doesn’t mean you’re expecting conflict, and it doesn’t mean you’re undoing the progress you’ve already made. Often, it simply means sense-checking the agreement you’ve reached and making sure it’s properly documented in a way that protects you moving forward.
For many people, the first step is simply an initial conversation to understand where they stand, what options are available, and whether further work (such as Consent Orders) may be needed in their circumstances. Gaining that clarity early can help people make informed decisions and often reduces the risk of stress, cost, and uncertainty down the track.
If you’re unsure whether your financial matters have been properly finalised, feel free to book in for a free 15-minute enquiry call to begin getting the answers you need to protect you and your family after separation.
