Can Property Settlement Consent Orders be Set Aside?

Can Property Settlement Consent Orders be Set Aside?

What is a Property Consent Order?

A property consent order sets out how property is to be divided after parties have separated. Consent orders are considered to be the gold standard in terms of finalising your property settlement.

Benefits to Property Consent Orders

There are many benefits to property consent orders. They provide stamp duty exemptions. They are enforceable and they set out clear timeframes within which steps must be taken.

Another benefit to consent orders is that once they are made, in the eyes of the law, your property settlement is finalised and the other party cannot make claims against your assets in the future.

This, however, is on the basis the consent orders are not later varied or set aside.

Circumstances that Allow for Property Consent Orders to be Set Aside:

Applications to set aside consent orders are rare. They can be difficult applications to make successfully.

The circumstances that allow consent orders to be set aside are set out in Section 79A of the Family Law Act. These include:

1. Miscarriage of Justice. This includes: If there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance.
2. Impracticability. If circumstances have arisen since the order was made that make it impracticable for the order, or part of it, to be carried out.
3. Default. If a person has defaulted in carrying out an obligation under the order and it is just and equitable to vary the order or make another order in substitution.
4. Hardship relating to care of children. If circumstances have arisen since the making of the order, of an exceptional nature and relating to the care, welfare and development of a child/children of the relationship and that person will suffer hardship if the order is not varied or set aside.
5. Proceeds of crime. A proceeds of crime order has been made in relation to a party and/or their property.

Reducing the Risks of a Property Order being Set Aside:

While the variation or setting aside of a consent orders is rare, steps should be taken when negotiating and drafting consent orders to reduce the risk of that happening. Some steps that may reduce this risk include:

Disclosure:

Parties must disclose all relevant assets, liabilities and financial resources. All parties negotiating a property settlement have this obligation and must sign a statement within the consent orders confirming they do not have assets they have not disclosed.

If you fail to disclose assets this may risk your consent orders being varied or set aside later. There can be other, more serious consequences that affect you, for failing to comply with the disclosure rules.

Forward planning:

Ensure the steps required to be taken under the orders can be undertaken. If there is any uncertainty, an alternate option can be included in the orders. For example, the agreement may see one party retaining real estate. This may require them to transfer the title and refinance the mortgage into their sole name. They may have pre-approval before signing the consent orders, and then unexpectedly lose their job, jeopardising their ability to refinance. To cater for this, the consent orders could include a longer timeframe for refinance, or orders for a sale if the refinance can no longer occur. This allows the for the orders to be self-executing regardless of whether there is a refinance or sale.

Compliance:

It is crucial you comply with any Court Orders, whether made by consent or otherwise. Non-compliance can have serious consequences, including, the Court can Order you to pay the other party’s legal costs.

Summary

Finalising your property settlement by consent orders can be a cost-effective option for safeguarding your agreement with respect to property as it will protects your assets into the future.

To ensure your property consent orders provide the protection they are designed to, it is important they are prepared correctly.

We always recommend seeking advice from an experienced Family Lawyer to advise and draft legal documents such as property consent orders.