Reaching agreement between yourselves
If you and your partner have come to an agreement, we advise that you formalize the agreement.
Reaching a settlement out of court saves you and your family considerable time, stress and money. Failure to formalise your agreement may mean that either spouse can bring an Application to get more than was agreed, placing at risk assets obtained after separation.
There are two ways that your agreement can be formalised:
- Financial Agreements
- Consent Orders
These are similar to pre-nuptial agreements, but are signed before, during or after a marriage. Under the Sections 90B – 90D of the Family Law Act, financial agreements cover the following:
- division of property, finances and debts after a marriage breakdown
- spousal maintenance
- Other incidental issues.
For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.
If no agreement can be reached between yourselves
If no agreement can be reached between yourselves, we can undertake negotiations on your behalf with your spouse/partner or with their legal representatives. This often results in a speedy and amicable resolution and the agreement can be easily formalised to provide certainty.
If however, despite our best efforts negotiations fail and no agreement can be reached then an Application for property orders must be submitted to either the Family Court or the Federal Magistrates Court.
An Application must usually be made within 12 months of your divorce becoming final or within 2 years of the date of separation if in a De Facto relationship.
The decision is then made through a Court Hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.
Consent orders are a written agreement that are formalised and approved by the Court and thus are legally binding. To file Consent Orders, neither you, nor your spouse/partner, need to go to Court.
Consent orders can deal with the following:
- The transfer or sale of property
- The splitting of superannuation
- Spousal maintenance.
- Living arrangements for children
Consent orders are filed with the nearest Family Law Registry. The Court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable”, before it will approve them.