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Property consent orders overview
Property consent orders allow separating couples to formally divide their assets, debts, and superannuation by agreement. Once made by the Court, they are legally binding and enforceable.
The legal basis depends on the nature of your relationship:
| Relationship type | Provision | What it does |
|---|---|---|
| Married couples | Section 79, Family Law Act 1975 | Gives the Court power to alter property interests |
| De facto couples (including same-sex) | Section 90SM, Family Law Act 1975 | Equivalent powers for de facto relationships |
Time limits
Married couples: 12 months from divorce becoming final.
De facto couples: 2 years from the date of separation.
Applications outside these limits require "leave" (permission) from the Court, which adds complexity. Act before the deadline.
What can be included
Property consent orders can address all financial aspects of your separation — real estate, superannuation, investments, vehicles, business interests, debts, and spousal maintenance.
Real estate
- Family home — transfer to one party, sale, or buyout
- Investment properties
- Land and vacant blocks
- Properties held in trusts (more complex — legal advice recommended)
Superannuation
- Percentage splits (e.g. 60/40 of the member's interest)
- Base amount splits (a fixed dollar amount adjusted for earnings)
- Flagging orders (preserving a future interest)
- Multiple super funds can each be addressed in the same orders
Bank accounts and investments
- Savings and transaction accounts
- Term deposits
- Shares and managed funds
- Cryptocurrency and digital assets
Vehicles and personal property
- Cars, boats, caravans
- Furniture and household items
- Jewellery and valuables
- Collectibles and artwork
Business interests
- Sole trader businesses
- Company shares
- Partnership interests
- Business goodwill and assets
Debts and liabilities
- Mortgages
- Personal loans
- Credit card debts
- Tax liabilities
Spousal maintenance
Property consent orders can also include spousal maintenance — either ongoing periodic payments (e.g. $500/week for three years), a lump sum in lieu of ongoing maintenance, or a clause that neither party will claim spousal maintenance in the future. Consider carefully before agreeing to waive future claims.
What the Court considers: section 79(4)
Even with consent orders, the Court must be satisfied the division is "just and equitable." The Registrar will consider the section 79(4) factors before approving your application.
1. Financial contributions
Money and assets brought into the relationship, wages earned, inheritances received, and financial contributions to property acquisition or improvement.
2. Non-financial contributions
DIY renovations, property maintenance, helping with a spouse's business, and other non-monetary contributions to property improvement.
3. Homemaker and parenting contributions
Caring for children, managing the household, and enabling the other party to work or develop their career. These are treated as equal to financial contributions.
4. Future needs (section 75(2) factors)
Age, health, income and earning capacity, who has primary care of children, and other factors that affect future financial circumstances.
"Just and equitable" does not mean 50/50
Superannuation in consent orders
Superannuation splitting is common in property settlements and follows a defined process. Here is how it works.
Types of super splits
| Type | How it works |
|---|---|
| Percentage split | A percentage of the balance (e.g. "40% of the Member's interest") calculated at the time of splitting |
| Base amount split | A fixed dollar amount (e.g. "$50,000 of the Member's interest") adjusted for earnings/losses until the split is processed |
Steps for superannuation splitting
- Get information from the fund — request the current balance and confirm the fund accepts splitting orders.
- Include splitting orders in your consent orders — specify the fund, the type of split, and the amount or percentage.
- After orders are made, notify the fund — provide certified copies of the orders to each super fund.
- Fund processes the split — the receiving spouse nominates a fund to receive their share.
Fund fees
After orders are made
Once your property consent orders are made, you need to implement them promptly. Each asset class has its own steps.
- Property transfers — lodge transfers with your state land titles office. Stamp duty exemptions usually apply to transfers pursuant to court orders; check your state's requirements.
- Super fund notifications — provide certified copies of the orders to each super fund. The receiving party will need to nominate a fund to receive their share.
- Bank accounts and investments — close joint accounts, transfer funds as ordered, and update account signatories. Provide the bank with a copy of the orders if needed.
- Debt refinancing — the lender is not bound by your consent orders. If one party is taking over a mortgage, refinancing in their sole name may be necessary to release the other party.
- Record keeping — keep certified copies of your orders safely stored. You may need them years later for tax purposes, future disputes, or proving ownership.
Common questions
Do property consent orders need to be 50/50?
No. The Court doesn't require an equal split. What matters is that the division is 'just and equitable' considering each party's contributions (financial, non-financial, and homemaker/parenting) and future needs. Many settlements are not 50/50 and are still approved because they fairly reflect the parties' circumstances.
How do I include superannuation in consent orders?
Superannuation can be split using percentage splits or base amount splits. You'll need to obtain information from the super fund(s) about the account value and whether they accept splitting orders. The orders must specify which fund, the type of split, and the amount or percentage. The fund processes the split after orders are made.
Do I need a valuation for consent orders?
Not necessarily. Parties can agree on asset values without formal valuations. However, if you're unsure about values, or if the division might later be questioned, getting valuations (especially for property and businesses) provides certainty and helps demonstrate the division is fair.
Can I include spousal maintenance in property consent orders?
Yes. Property consent orders can include spousal maintenance (ongoing payments from one party to the other). You can also include a clause that neither party will claim spousal maintenance in the future, which provides finality. Consider carefully before agreeing to waive future claims.
What if we don't agree on property values?
If you can't agree on values, you have options: get independent valuations (which may help you reach agreement), use the average of two valuations, or use values from recent sales evidence. If agreement still isn't possible on key values, consent orders may not be appropriate and you may need to consider mediation or contested proceedings.
What happens to the mortgage in consent orders?
The orders should specify how the mortgage is handled — whether one party takes over the debt (and indemnifies the other), whether the property is sold and the mortgage paid from proceeds, or other arrangements. Note that the lender is not bound by your consent orders, so refinancing may be needed to remove a party from the mortgage.
Legal disclaimer