Can consent to a Consent Order be withdrawn?

By May 16, 2022Blog

Couples who are separating can engage a lawyer to prepare a Consent Order that details and documents how they have agreed to split property.

For those who are able to come to an agreement amicably, it is a very cost-effective and straight forward way of finalising their property settlement. Once signed, it is then lodged with the courts for review and approval. Only upon approval by the court does it become legally binding and enforceable.

Case in point
Hullet & Benton 
[2022] FedCFamC1A 13 (11 February 2022)

In this recent case, the couple had prepared and submitted an Application for Consent Orders to the court. However, the husband passed away before the order was approved by the court.

Upon his death, the wife withdrew her consent. As a result the court dismissed the Application for Consent Orders, meaning their agreement was not legally binding or enforceable.

The Executor of the husband’s Will sought a review of this decision, arguing that the Application for Consent Orders constituted the commencement of proceedings. The court accepted his argument and as a result the proceedings were able to continue, with the Executor allowed to represent the husband in a property settlement matter heard before the courts.

Once given, consent may not be able to be withdrawn

This case illustrates that withdrawing consent after an Application for Consent Orders is lodged with the courts, will not necessarily result in the application being dismissed.

It also highlights how important it is for separating couples to finalise and document their agreements as soon as possible, to allow them to move forward with their lives with greater certainty and peace of mind.

Need advice or assistance finalising your agreement?

The team at Lakey Family Law has significant experience in helping couples document and formalise their property settlement agreement, through both Consent Orders and Binding Financial Agreements.

This fact sheet provides more information about Consent Orders and Binding Financial Agreements. If you would like more information, or assistance formalising your agreement – we’re here to help. Simply contact us for an initial, obligation free chat.

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