QLD How to Lodge Consent Orders?

[Kelly_L]

My ex and I have separated after a little over 2 years of marriage and I am looking to purchase the family home. Some facts are as follows:

• At the time of moving in together (approx. 6 years ago), I had approximately $14,000 savings, a car worth approx. $4,000 and a house full of furniture, whereas the ex came into the relationship with approx. $20,000 debt, no furniture and a car worth approx. $1000.
• At the time of purchase of the family home I contributed half of the deposit, the other half was loaned to us by my parents, of which there is still $6000 debt owing to them – no financial contribution was made towards the deposit by the ex
• As at now, there is approximately $61,000 in equity in the house
• I have a significantly higher amount (1.6 times his amount) in superannuation because I have been making significant voluntary contributions for a number of years, whereas he has not made any voluntary contributions
• Neither party has ever been off work during the period of the relationship and had to support the other party in that way
• We have agreed that there is no interest in each others superannuation
• There are other factors which the ex and I have agreed to take on board such as other expenses we had during the relationship that I paid and he has “owed me” for.
• There are no children involved in the separation

Although I know that family law does not take some of those specific things into consideration, given that I have made the greater financial contributions throughout the course of the relationship and marriage, my ex and I have been amicable enough to actually agree on a settlement figure that is approx. a 65 / 35 % split (in my favour).

I sought an initial legal consultation (no cost and no obligation) to look towards having this matter finalised and the lawyer’s advice has been that they do not think the court will agree to the split unless we both have independent legal advice. Unfortunately, neither of us can afford (or are willing to pay) the legal fees associated with this (my quote was $5,000 for consent orders or $10,000 for a binding financial agreement). The ex has flat out said that he cannot afford legal fees and is unwilling to end up having a significant proportion of the agreed settlement money go towards any legal fees.

Does anyone know:

• How hard is it to complete and lodge the consent orders yourself?
• In order to support the property settlement application are we able to include “notes” about some of the things that we have agreed upon (e.g. the deposit, the difference in financial position when the relationship started etc) in either the consent order or the minutes?
• Is there scope for the courts to see in favour of two adults that have reached a mutual agreement outside of lawyers offices/courts?
• What are the chances of getting a 65 / 35 split through the courts?
• Are there any other suggestions of things that can be done to try to assist with getting this matter settled?

 

[AllForHer]

First, kudos to you and your ex for being able to agree on a property settlement.

• How hard is it to complete and lodge the consent orders yourself?

I don't think its hard - the forms are here: Consent Orders

• In order to support the property settlement application are we able to include “notes” about some of the things that we have agreed upon (e.g. the deposit, the difference in financial position when the relationship started etc) in either the consent order or the minutes?

You can include notations if you wish about things you have agreed on but don't necessarily form part of the division. All you do is add a section to the end of the minute of consent orders entitled 'Notations' and write them as 'The parties agree that the wife's contribution to the shared asset pool was X and the husband's contribution to the shared asset pool was Y', etc.

• Is there scope for the courts to see in favour of two adults that have reached a mutual agreement outside of lawyers offices/courts?

The court will grant consent orders for property settlement. All consent orders really does is give the court powers to enforce the settlement if one party refuses to comply with what they have agreed to do.

• What are the chances of getting a 65 / 35 split through the courts?

So, there's two ways a property settlement can be determined - by agreement between the parties, which can be filed as consent orders if needed; or after a trial through the court.

The trial option means you don't know the outcome. You might get 65%, you might get 35%, there's no way of knowing, and it doesn't matter how confident you are in your case, the other party will undoubtedly be just as confident, so the outcome can never be predicted. On top of that, you're looking at upwards of $20,000 in legal fees, potentially per party, so the asset pool depletes significantly, and whatever you might have hoped to gain from a hearing may well be lost on lawyers and court fees.

The agreement option means you and your ex stay in control of your asset pool, and it maintains a significantly higher value than it would otherwise.

In my view, a 65/35 split is very much a favourable outcome for you. If the court were to hear it, it would probably be closer to 50/50, simply because you agreed to take on your partner's debt when you married. It's assumed that parties who enter into marriage intend to do so for life, and as such, all assets individually attained form part of the shared asset pool because both parties intended on benefiting from that asset pool jointly and entered into a marriage contract to that effect. Thus, I would say that the 65/35 split is very much a fair outcome.

• Are there any other suggestions of things that can be done to try to assist with getting this matter settled?

Keep it amicable, keep it fair, be respectful for each other and what you individually brought to the relationship, and don't brood over who gets the toaster and the good crockery.

 

[Kelly_L]

Thanks so much for the info!

I've downloaded the application for consent order and basically all of the questions seem quite straightforward, but what I'm really struggling with is the wording and format for the minutes that need to be attached.

Is there anywhere online that might give blanked out examples? I'm trying so hard to do this myself but it seems quite difficult for the average person!

 

[AllForHer]

Here's a template for minutes: http://www.thefamilylawbook.com.au/samples/precedents/consentminutesfmc.pdf

Examples of how they are written can be viewed on any court decision for property settlement. For example:

Edgley & Edgley [2014] FCCA 2707 (3 December 2014)

Cross & Hagan [2016] FCCA 136 (9 February 2016)

Renard & Geach [2014] FCCA 2605 (20 November 2014)

Etc.

Basically:
1. That within 28 days, the husband pay to the wife the sum of $300,000.
2. That within 28 days, the husband do all things necessary to transfer the deed of the property at (address) into the wife's name.

Etc.

And I strongly suggest getting legal advice before filing, just to make sure your I's are dotted and t's crossed.

 

[Evi]

If you have consent orders drawn up while I'm a de facto, and then get married; will those orders still be relevant in case of a split though?

 

[AllForHer]

If it's a BFA, yes, but the longer a relationship lasts, the less likely the court is to uphold the BFA in its complete form. Even though de facto and married couples are treated fundamentally the same in the FLA, the marriage contract also comes with an underlying intent to share in each other's assets for life. De facto, not so much. It's determined case by case, though.