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How do I resolve issues without the court?

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  • January 16, 2015

How do I resolve issues without the court?

There are three ways to resolve a family law matter reliably. Two of those – a consent order and financial agreement – are relatively quick and cost-effective but requires some cooperation; the third – a judge’s order – tends to be difficult, expensive and stressful. It follows that cooperation is the key factor which is the difference between a quick, easy, cost-effective family law matter and a difficult, expensive, stressful one. The problem is that this is not well understood or well-advertised and, if you watch American television or talk to well-meaning friends of family, you can get the opposite impression. See Cooperation and Consent order.

While it is common for people to take an adversarial or combative approach to family law, often, small things that might promote cooperation and trust, especially at the beginning of a matter, can pay dividends in the form of savings in costs, delay and stress. See Cooperation.

A consent order is an order of the court made with the consent of both parties (as opposed to an order made by a judicial officer independently of the parties’ consent).

A financial agreement is a contract between the parties made under the Family Law Act that defines how the assets of the parties are to be divided and whether spouse maintenance is payable upon breakup of the relationship.

Generally consent orders are in writing, they will include all relevant details, including details of mechanics and timing for compliance, they will be signed by both parties and (generally) signed by both parties’ solicitors or representatives.

If a property consent order is properly drafted and made following advice and full and frank disclosure of both parties’ financial circumstances, it will be very reliable. For the court to make a consent order and for it to be reliable (or as reliable as it can be), the court must be satisfied that each party has made full and frank disclosure, that each party has received independent advice about the operation of family law and that the order is just and equitable. Satisfying these requirements can usually be done by completing documents setting out each party’s financial circumstances and evidence of advice. Court attendance is not generally necessary for consent orders.

(See also When an order can be set aside (section 79A))

Consent orders relating to children can change but, most often, this would occur only where there has been a significant change in circumstances since the last order.