Why DIY Wills Are a False Economy: The Hidden Costs of Getting It Wrong
Online will kits and DIY templates have become increasingly popular. A quick Google search reveals countless services offering wills for $30, $50, or even free.
On the surface, it looks like a sensible way to save on legal fees. But in practice, a poorly made will can cost your family many times more than the solicitor fees you saved.
What Are Consent Orders?
Consent orders are legally binding orders made by the Federal Circuit and Family Court of Australia, based on the terms you and your former partner have agreed on. They can cover:
- Property and financial matters - how assets, debts, and superannuation will be divided
- Parenting arrangements - where children will live, how time is spent with each parent, and decision-making responsibilities
- Spousal maintenance - ongoing financial support from one party to the other
The key difference between consent orders and a verbal or informal agreement is enforcement. Once consent orders are approved by the court, they carry the full weight of a court order. If either party doesn't comply, the other can take legal action to enforce them.
Why Can't We Just Agree Between Ourselves?
You can agree on whatever you like. The problem is what happens when circumstances change or someone has a change of heart.
Without consent orders or a binding financial agreement in place:
- Either party can make a property claim against the other at any time (within the time limits - 12 months after divorce or 2 years after a de facto relationship ends)
- There's no legal mechanism to enforce the arrangement if one party stops following it
- Parenting arrangements have no formal standing, which can create problems if a dispute arises later
- Financial institutions may not accept an informal agreement when transferring property or splitting superannuation
Formalising your agreement protects both parties and draws a clear line under the financial relationship.
How Do Consent Orders Work?
The process is more straightforward than most people expect.
Step 1: Reach an agreement
Both parties need to agree on the terms. This can be done through direct negotiation, with the help of your solicitors, or through mediation.
Step 2: Draft the orders
Your solicitor prepares the proposed consent orders in the format required by the court, along with an Application for Consent Orders.
Step 3: Both parties sign
Both you and your former partner must sign the application and the proposed orders. Each party should have independent legal advice before signing.
Step 4: File with the court
The signed documents are filed with the Federal Circuit and Family Court. There's no need to attend a hearing - the court deals with consent orders on the papers.
Step 5: Court approval
A judicial officer reviews the proposed orders to make sure they are just and equitable (for property matters) or in the best interests of the children (for parenting matters). If satisfied, the court makes the orders.
The entire process typically takes a few weeks to a few months, depending on how quickly the agreement is reached and how busy the court is at the time of filing.
Consent Orders vs Binding Financial Agreements
Both options formalise a financial settlement, but they work differently.
Consent Orders:
- Approved by the court
- Court checks that the agreement is just and equitable
- Can cover both property and parenting
- Generally less expensive than going to court but more robust than a handshake
- Can be enforced through the court if breached
Binding Financial Agreements (BFAs):
- A private contract between the parties
- Not reviewed or approved by the court
- Both parties must receive independent legal advice
- Can be made before, during, or after a relationship
- Can be set aside by the court in certain circumstances
For most separating couples, consent orders are the more common and practical option. BFAs are typically used for pre-relationship agreements (similar to a prenup) or in specific situations where court involvement isn't preferred.
Common Questions
Do we need to be divorced first?
No. You can apply for consent orders at any time after separation, even before your divorce is finalised.
What if we agree on some things but not everything?
You can apply for consent orders on the matters you agree on and continue negotiating (or seek court assistance) on the rest. Partial consent orders are common.
Can consent orders be changed later?
Property consent orders are generally final. Parenting consent orders can be varied if there has been a significant change in circumstances and the change is in the best interests of the children.
What if my ex won't agree?
If you can't reach an agreement, you may need to apply to the court for a determination. This is a different process, but your solicitor can advise on the options available.
How much do they cost?
The court filing fee is relatively modest. The main cost is legal fees for drafting the orders and providing advice. This varies depending on the complexity of your situation, but it's significantly less than contested court proceedings.
Don't Leave It to Chance
Reaching an agreement with your former partner is a significant achievement. The final step is making sure that agreement is legally protected so both of you can move forward with certainty.
Ready to formalise your agreement? Our family law team can help you draft and file consent orders efficiently. Call us on (03) 9787 4511 or book a consultation.
