Your relationship has ended and you and your former partner have reached an agreement about how to divide the property. What comes next is making that agreement legally binding so both sides are protected and the property can actually change hands.
In Queensland, a consent order is the most common way separating couples formalise a property settlement they have already agreed on. It is a court order, but most applications are decided by a Registrar without a hearing. Once sealed, it carries the same legal force as an order made after a contested trial, according to the Federal Circuit and Family Court of Australia.
Our Springfield team helps clients across Greater Springfield and Ipswich with consent orders and property transfers after separation. Here is how the process generally works in Queensland, and what the property transfer steps involve.
Key takeaways
- Consent orders are legally binding court orders made by agreement, not after a hearing.
- Married couples generally have 12 months from a divorce order to apply, according to the Federal Circuit and Family Court of Australia.
- No transfer duty is payable on a transfer that gives effect to a court order or financial agreement under the Family Law Act, according to the Queensland Revenue Office.
This article is general information only and is not legal advice. Every situation is different, and you should speak with a solicitor about your own circumstances.
What are consent orders and how do they work in Queensland?
Consent orders are proposed court orders that both parties agree on and jointly ask the Federal Circuit and Family Court of Australia to formalise. They can cover how property, superannuation, financial resources and liabilities are divided, as well as spousal or de facto partner maintenance. The Court does not require the parties to attend a hearing where it grants an application on the papers.
The Registrar who considers the application checks that the proposed orders are just and equitable, according to the Federal Circuit and Family Court of Australia. The Court cannot make orders that do not meet that test, even where both parties have signed. Where the application is granted, sealed orders are issued and those orders carry the same legal force as orders made at a trial and can be enforced if one side does not comply.
A consent order is different from a binding financial agreement, which is a private contract made outside the court under the Family Law Act. A financial agreement also removes the Court's jurisdiction over financial proceedings, but it requires each party to have received independent legal advice before signing and can be set aside only on listed grounds. The two instruments serve different purposes and the choice between them depends on the circumstances of each matter.
When can you apply for consent orders in Queensland?
The time limits for applying for property orders under family law differ depending on whether the parties were married or in a de facto relationship, according to the Federal Circuit and Family Court of Australia.
Married couples must apply within:
- › 12 months of the divorce order taking effect. The granting of a divorce does not automatically resolve property or financial matters. Those are dealt with separately.
- › Before the divorce order takes effect, if preferred. Property settlement or maintenance orders can be sought before a divorce is finalised.
De facto couples must apply within:
- › Two years from the date the relationship broke down. This is the general rule under the Family Law Act for de facto couples in participating jurisdictions, which includes Queensland.
Applications made outside these periods generally require the Court's permission to proceed, which is not automatic, according to the Federal Circuit and Family Court of Australia. An application can be filed at any time after separation, including before a divorce is granted. Filing fees apply unless an exemption is available.
How does the property transfer actually happen in Queensland?
Getting consent orders is one step. Transferring the property itself is a separate conveyancing process that follows. In Queensland, a transfer of an interest in land takes effect only when it is registered with Titles Queensland, according to Titles Queensland's Land Title Practice Manual.
The main steps in a property transfer after consent orders include:
- › Sealed orders: the sealed consent orders are required before a transfer can proceed. They must pre-date the transaction and specify the property and who receives it.
- › Transfer documents: the transferors and transferees sign a Form 1 Transfer. A Form 24 Property Information form accompanies every transfer lodged with Titles Queensland, even where no transfer duty is payable.
- › Duty assessment: documents are lodged for duty assessment within 30 days from when the liability arises. No transfer duty is payable on a transaction that gives effect to a court order or financial agreement made under the Family Law Act, according to the Queensland Revenue Office. The sealed order, a dutiable transaction statement and the transfer documents are what is lodged to claim that exemption.
- › Mortgage release or refinance: if the outgoing party is named on a mortgage, the lender must be involved. A release of mortgage must be registered with Titles Queensland once the loan is repaid, according to Titles Queensland.
- › Registration: most correctly prepared dealings register within 3 to 5 working days, according to Titles Queensland, giving the new owner indefeasible title.
A transfer under a court order is exempt from transfer duty under the Queensland Revenue Office's rules, but the exemption requires the sealed order to be valid, to pre-date the transaction, to clearly direct the transfer and to specify the property. Receiving an interest in land may also affect a party's land tax position, and a solicitor can advise on that.
How does a solicitor help with consent orders and property transfers in Queensland?
The steps below describe how our conveyancing team works through a consent order and property transfer matter.
Step 1: Talk to us
Get in touch and we'll explain how the process generally works and what the next steps look like.
Step 2: Prepare the consent order application
We assist with preparing the Application for Consent Orders, the proposed orders and the financial statements that each party is required to sign, confirming the details of their financial circumstances are true and correct.
Step 3: Lodge with the Court and obtain sealed orders
We lodge the application online through the Commonwealth Courts Portal. Once the Registrar grants it and sealed orders are issued, we have the legal authority to proceed with the property transfer.
Step 4: Complete the property transfer
We prepare the transfer documents, arrange the duty lodgement, liaise with any lender regarding a release of mortgage, and manage the registration with Titles Queensland to put the title in the correct name.
| Get in touch Need help with a property transfer after separation? We're an experienced team who keep you well informed at every stage of the process. Get in touch to discuss your needs. |
When do consent orders not apply to a property matter in Queensland?
Consent orders are not the only, or always the right, instrument for every separating couple in Queensland. Understanding when they do not apply helps clarify what alternatives exist.
Consent orders are generally not the right instrument where:
- › The parties choose a financial agreement instead. A binding financial agreement made under the Family Law Act operates outside the court system. It requires each party to have received independent legal advice certified by an Australian lawyer before signing, and can be made before, during or after a relationship.
- › The parties cannot agree. Where agreement cannot be reached, one party may file an Initiating Application to have the Court decide the property division after proceedings. Consent orders require both parties to agree on the proposed terms before the application is filed.
- › The property is already held as joint tenants and one party has died. On the death of a joint tenant the interest passes immediately to the surviving owner by survivorship under the Land Title Act, regardless of any will or court application, according to Titles Queensland.
- › The matter involves only superannuation and no other property. Superannuation can be addressed in consent orders, but it is treated as a different type of property under the Family Law Act and the process for splitting it involves the fund trustee as well as the Court.
- › The time limit has passed and the Court has not given permission. An out-of-time application is not automatically refused, but it requires the Court's leave and carries no guarantee that leave will be granted, according to the Federal Circuit and Family Court of Australia.
"Consent orders and a binding financial agreement can each formalise a property settlement, but they are fundamentally different instruments. One is a court order; the other is a private contract. Which one suits a particular situation depends on the circumstances and is exactly the kind of question a solicitor works through with you."
Jade Kickbusch, Principal, Brookwater Legal
What happens if one party does not comply with the consent orders in Queensland?
Consent orders are legally binding once made, and each person affected must comply and take all reasonable steps to put the orders into effect, according to the Federal Circuit and Family Court of Australia. Courts do not automatically enforce family law orders; the other party must apply and the Court then decides whether an enforcement order is needed.
Where a party refuses or neglects to sign a transfer document required by the orders, the Family Law Act allows the Court to appoint an officer of the Court or another person to sign in that party's name. This means a transfer directed by the orders can generally proceed even if one party is uncooperative, although enforcement proceedings add time and cost to the process.
The Court also maintains a National Enforcement List for parties who have not complied with financial or property orders, according to the Federal Circuit and Family Court of Australia. Cases on that list are managed with greater oversight to encourage compliance.
Frequently Asked Questions
Do consent orders need to go before a judge in Queensland?
No. Most consent order applications are decided by a Registrar on the papers without a hearing, according to the Federal Circuit and Family Court of Australia. The parties are not required to attend court unless the Registrar asks for further information.
How long do de facto couples in Queensland have to apply for consent orders?
Two years from the date the de facto relationship broke down, according to the Federal Circuit and Family Court of Australia. Applications made after that generally require the Court's permission, which is not automatic.
Is transfer duty payable when property is transferred under consent orders in Queensland?
Generally no. The Queensland Revenue Office sets out an exemption for transfers that give effect to a court order or financial agreement made under the Family Law Act, provided the sealed order is valid, pre-dates the transaction and specifies the property.
Can consent orders be changed after they are made in Queensland?
Only in limited circumstances. According to Legal Aid Queensland, a person must prove fraud, that the orders are impractical to carry out, or exceptional circumstances relating to children's care, welfare and development. Changing them is not straightforward.
Does a divorce need to be finalised before applying for consent orders in Queensland?
No. Property settlement or maintenance orders can be sought before a divorce is finalised, according to the Federal Circuit and Family Court of Australia. Divorce and property proceedings are separate processes and are not filed together.
Do you need a solicitor for consent orders and a property transfer in Springfield or Ipswich QLD?
The Federal Circuit and Family Court of Australia says legal advice is not required before entering consent orders, but recommends getting independent legal advice about the effect of the proposed orders. A solicitor also manages the property transfer, the duty lodgement and the registration with Titles Queensland, which are separate steps after the orders are made. Our conveyancing team handles both sides of the process for clients in Springfield, Ipswich and across Greater Springfield.
What is the difference between consent orders and a binding financial agreement in Queensland?
Consent orders are court orders made by agreement and carry the Court's authority. A binding financial agreement is a private contract made outside the court under the Family Law Act, according to the Federal Circuit and Family Court of Australia. Each party must have received independent legal advice before signing a financial agreement.
Your Next Steps
Getting the property transfer right after a separation matters, and the steps involved, from the Court application through to Titles Queensland registration, require attention to timing and detail. For families in Springfield, Ipswich and across Greater Springfield, having a solicitor manage both the consent order application and the conveyancing side in one place keeps the process moving and avoids gaps between the two.
If consent orders and a property transfer are on your mind, the next step is a straightforward one. Get in touch with the Brookwater Legal team or call (07) 3437 8555, and we'll talk you through how the process generally works.
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External Resources
- Federal Circuit and Family Court of Australia – Financial or property: We have agreed
- Federal Circuit and Family Court of Australia – How do I apply for consent orders?
- Federal Circuit and Family Court of Australia – National Enforcement List cases
- Queensland Revenue Office – Matrimonial transfer duty exemptions
- Titles Queensland – Transferring freehold land
- Legal Aid Queensland – Property and financial agreements
Brookwater Legal · This article contains general information only and does not constitute legal advice. It does not take into account your individual circumstances. You should obtain legal advice about your own situation before acting on anything in this article. Liability limited by a scheme approved under Professional Standards Legislation.
