Drafting NSW property settlement consent orders
Property settlement consent orders are the most common way of formalising an agreed division of assets after separation in Australia. The FCFCOA has specific format requirements and the orders must satisfy the just and equitable test before approval.
This is an 8-step workflow for drafting NSW property settlement consent orders for the Federal Circuit and Family Court of Australia. It assumes the parties have reached an in-principle agreement and need to formalise it through the FCFCOA consent orders process.
Before you start
- Both parties have reached an in-principle agreement on the property division
- Full and frank disclosure has been provided by both parties
- Both parties have received independent legal advice (or have explicitly waived it where applicable)
- A current property pool with values has been agreed
The workflow
Confirm the property pool
Confirm the asset and liability pool with current values. Include all real property, superannuation, savings, investments, debts, and notional adjustments. The pool date is typically the date of the orders.
Apply the four-step framework
Identify the property pool, consider contributions (financial, non-financial, homemaker), consider future needs (s 75(2) factors), and confirm the result is just and equitable.
Draft the orders in FCFCOA format
Use the standard FCFCOA consent orders format with numbered orders. Include all parties, the assets being transferred, payments being made, and any superannuation splitting orders.
Address superannuation splitting (if applicable)
If the orders include a superannuation split, draft the splitting order in the form required by the relevant super fund. Include procedural fairness notice if required.
Add standard ancillary orders
Include standard ancillary orders for cost of transfer, indemnity for joint debts, mutual release, and consent to dismissal of any pending proceedings.
Prepare the Form 11 application
Complete the Application for Consent Orders (Form 11) with the parties' financial details, the property pool, and the basis for the agreement.
Both parties sign with witness
Both parties sign the application and the orders. Each party should ideally sign in the presence of an independent witness (typically their solicitor).
File via Commonwealth Courts Portal
File the Form 11 and consent orders through the Commonwealth Courts Portal. Pay the filing fee. The orders are reviewed by a registrar before being made.
What you will have at the end
Sealed FCFCOA consent orders that are enforceable as court orders. Once made, the orders bind both parties and form the basis for transferring assets, splitting superannuation, and discharging mutual claims.
Common issues
- Failing to include a notional adjustment for assets disposed of during the relationship
- Forgetting to include a superannuation procedural fairness notice where required
- Drafting orders that are not just and equitable (the registrar will refuse to make them)
- Missing the formal disclosure obligations under the Family Law Rules
- Not addressing future contingencies like the sale of the family home
Run this workflow on a real matter
Quillio drafts FCFCOA consent orders in the standard format from your inputs (parties, pool, division). It cross-checks against current FCFCOA requirements and surfaces relevant authority on each step of the four-step framework. See /practice-areas/family-lawyers or start a free trial.
This workflow is a general guide. Adapt it for the specific circumstances of your matter — including any child support, spousal maintenance, or parenting orders that need to be addressed in the same application.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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