Are final property consent orders really final?

Are final property consent orders really final?

So you have separated or divorced, and now you must deal with the division of finances and property. Both you and your ex-partner likely want your fair share. And you’re probably anxious for the matter to be agreed upon once and for all.

One option is to apply for a property consent order. 

A property consent order will give you the security of knowing that the agreement between you and your ex-partner is legally binding. This can be of comfort for those going through a less-than-amicable separation.

But what exactly is a property consent order, and is it really final? Here are all the details of this legal pathway so you can decide if it’s the best option.


What is a property consent order?

Ideally, the two parties to a divorce or separation will reach an agreement about how to divide their finances and property. This could be with or without the assistance of lawyers. And it is in the best interests of both parties that they make this agreement official. 

A great way to do this is through a consent order.

A consent order is a legal document that outlines the details of an agreement between two parties in a separation. It can be in relation to parenting arrangements or finances such as debts, savings and property.

Once a consent order has been approved by the Court, it becomes legally binding. This means that if one party doesn’t stick to the conditions outlined, they have breached the agreement and could face a penalty. 

Are final property consent orders really final?

To put it simply, yes.

Once the court makes ‘final orders’ the property ties between you and your ex-partner are legally severed, and you are each prohibited from making any claim on the other in the future. 

Effectively, the financial relationship between you both has ended.

Can property consent orders be overturned?

It is very unlikely that a court would ‘set aside’ a final property consent order.

If both you and your ex-partner agree to the change in the property consent order, then it is possible. But if one refuses to agree, the chances of success are low.

In that situation, the person who wanted to set aside the final order would have to file an application with the Court. However, there are very limited circumstances in which the Court would agree to this.

The circumstances are set out in Section 79A(1) of the Family Law Act 1975 and require that the Court is satisfied that one of the following reasons have been met: 

  • Miscarriage of justice. There’s been fraud, duress, suppression of evidence, false evidence or something similar that has led to the miscarriage of justice. 
  • Impracticable. Circumstances have changed so that the final orders can no longer be carried out.
  • Failure to comply. One party has not carried out their obligations, and because of that, it would be ‘just and equitable’ to set aside the order for another. 
  • Child welfare. Circumstances have come up that relate to the care, welfare and development of a child and the person making the application has the responsibility for the care of the child and will suffer a hardship unless the order is set aside for another. 
  • Proceeds of a crime. A proceeds of crime order has been made covering the property of the parties to the marriage.

Only in one of these exceptional circumstances may a Court (and totally in their discretion) set a final property consent order aside and make another. However, this process can also be a bit risky. If the application fails, the respondent may attempt to retrieve costs from the applicant. 

Sound legal advice is vital

It’s important to seek legal advice to navigate this tricky area of family law. When it comes to dividing your property after divorce or separation, don’t make assumptions or take chances. It’s best to get the right information the first time because once a final property consent order is in place, it’s very hard to get it changed! 

The Toomey Family Law team is well-versed in property consent orders and can give you the expert legal advice you need. Please get in touch today so we can help you to ensure you get the best outcomes for you and your family.


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