Do Separated Couples Still Need Court Orders If They Agree?

If you and your ex agree on everything in your family law matter (whether it’s parenting, property, or both), you generally do not need to go to court for a Judge to decide things. However, it’s still important to formalise your agreement properly to ensure it’s legally binding and enforceable.

Parenting Arrangements

Under the Family Law Act 1975 (Cth), separating parents (or other persons concerned with the care, welfare, and development of a child) are encouraged to resolve parenting arrangements by agreement, without the need for court intervention, provided it is safe to do so.

There are 3 main ways to record such agreements:

1. Informal Agreement
   • This can be verbal or written but is not legally enforceable.
2. Parenting Plan
   • A written, signed, and dated agreement between the parties that outlines parenting arrangements.
   • Not legally enforceable, but may be considered by a court if a dispute arises later as evidence of what was agreed.
3. Consent Orders
   • A formal agreement filed with the court, which, once approved, becomes a legally binding and enforceable court order.
   • The application for consent orders is generally considered "on the papers" (in chambers), meaning parties do not need to attend court in person.

Property Settlements

Similarly, property and financial agreements can be resolved by:

1. Informal Agreement
   • Not legally binding or enforceable.
2. Financial Agreement (BFA)
   • A private contract, enforceable under the Family Law Act, doesn’t require court approval but requires each party to obtain independent legal advice.
3. Consent Orders
   • As with parenting, parties can file an Application for Consent Orders with the Federal Circuit and Family Court of Australia.
   • No court attendance is required unless the court has concerns about the proposed orders.

If you and your ex-partner agree on all matters:

• You do not need to go to court to formalise your agreement.
• If you wish to have a legally enforceable agreement (for example, to protect against future disputes or to satisfy third parties such as banks or government agencies), you can apply for consent orders. This process is administrative and does not require a court appearance.
• If you are content with an informal agreement or a parenting plan, you do not need to involve the court at all. However, these are not enforceable if one party later fails to comply.

Important Caveats

• Enforceability: Only consent orders (or a financial agreement for property) are legally enforceable. Parenting plans and informal agreements are not.
• Safety: If there are concerns about family violence or power imbalances, legal advice should be sought before entering any agreement.
• Changing Circumstances: Consent orders are difficult to change unless both parties agree or there is a significant change in circumstances.