Family Law Property Settlement Consent Orders
I have obtained and effected hundreds of family law property settlement Consent Orders covering the simplest property pools, to the most complex. Consent Orders I have drafted and obtained include those dealing with real property, business entities, trusts, self-managed superannuation funds, pension interests (such as MSBS, DFRB and DFRDB military invalidity pensions and parliamentary pensions), cryptocurrency and innumerable other types of investments, assets and debts.
I pride myself on efficiently obtaining Consent Orders which are comprehensive, clear and enforceable.
Issues I have navigated in preparing and obtaining Consent Orders are too numerous to comprehensively list, but include:
- correct drafting of Orders to ensure enforceability;
- correct drafting of associated documents, such as the Application for Consent Orders, to ensure draft Consent Orders are approved by the Court and not later susceptible to being set aside;
- provision of procedural fairness to superannuation funds;
- avoidance of often unforeseen tax ramifications, including capital gains tax and stamp duty, including tax potentially applicable to complex entities such as trusts and self-managed superannuation funds;
- incorporation of comprehensive terms for sale of various types of assets and repayment of debts;
- inclusions of terms for appointment of a trustee for sale of assets;
- ensuring terms are workable taking into account third party (e.g. bank) requirements;
- ensuring, where appropriate, default events are covered by ‘back-up’ / ‘plan B’ provisions (e.g. Orders for the sale of real property where a party is refused ‘finance’ on a property/mortgage transfer/refinance);
- inclusion of third party respondents (e.g. a new partner who wishes to receive an ex-partner’s interest in a property);
- applications after expiry of the standard statutory time limit;
- Consent Orders for relationships which broke down before 1 March 2009 (‘opting-in Certificates’).
The Court process required to obtain Consent Orders is invariably too complex for laypersons to successfully overcome. Further, it is commonplace for poorly drafted Consent Orders to result in frustration of intended settlement terms, lawfully justified non-compliance by the other party or unintended adverse financial consequences such as tax consequences. As such, I strongly recommend to clients that an experienced family lawyer be retained to assist with preparation of Consent Orders, no matter how small or simple the property pool.
