DOCUMENTING YOUR PROPERTY SETTLEMENT HAS NEVER BEEN SO SIMPLE

Reaching an agreement to formalise your property is one of the hardest decisions that you and your family may face going through separation or divorce.

At Maxwell and Lancaster solicitors, we understand the impact a relationship breakdown can have on you and your family and that’s why, when drafting an agreement for your property settlement, we keep it simple and practical with a future focused approach.

Here, we discuss Agreements that the Court considers when finalising property.

Financial Agreements can be made before hand, commonly known as a “prenup”, during the relationship or after the break down of your relationship. There are a number of ways that you and your ex-partner may choose to settle your property matter.

You and your ex-partner can negotiate (between yourselves, through your lawyers or through channels like mediation) and agree on a property settlement which can then be documented in either a private binding financial agreement or consent order which would be filed with the Court. If you and your ex-partner are unable to agree on a property settlement, we recommend utilising alternative dispute resolution processes where applicable and appropriate to do so in an effort to resolve your matter out of Court.

Prior to attending Court, you must attend Family Dispute Resolution as a pre-court requirement. If Family Dispute Resolution is unsuccessful and alternative dispute resolutions have been exhausted without an agreement reached, you may attend Court whereby the Court will make enforceable orders for the distribution of your property based on its application of the law to your individual situation. Our Family Lawyer can discuss with you the Court process.

BINDING FINANCIAL AGREEMENT

A Binding Financial Agreement can be entered into to finalise your property settlement. There are strict requirements for a Financial Agreement to be binding under the Family Law Act 1975 (Cth) and the agreement can be set aside if it does not comply with the requirements.??

The three elements that Binding Financial Agreements must have include:

1. Must be signed by both parties;

2. You and your ex-partner must obtain independent legal advice; and

3. You and your ex-partner must obtain a certificate of independent legal advice.

There is a strict obligation on you and your ex-partner to make full and frank disclosure of all assets, liabilities and financial resources as a legal requirement and the risk of not making the necessary disclosure includes setting aside the agreement.

CONSENT ORDER

A consent order is a written agreement that is approved by a Court. Signing a draft consent order means you agree with the orders and will follow the terms stated in the document. When the consent order is made, it has the same effect as a Court order made by a judicial officer after a court hearing.

You and your ex-partner can apply for a consent order to be made without going to Court. Before making the consent order, a Court will need to be satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable" pursuant to s79(2) of the Family Law Act 1975 (Cth).

DOCUMENTING YOUR AGREEMENT

We can prepare the Binding Financial Agreement or Consent order for you with ease, no stress and no long delays. Choosing a Binding Financial Agreement keeps it private, personal and out of Court and gives you the power to make the Agreement how you want and make the decisions for yourself. A Consent Order has the same effect but is approved by a Judicial officer and must be satisfied regarding the terms of the Agreement.

IMPORTANT TIME LIMITS

It is important to be aware of the time frames with formalising your property settlement. For married couples, you have 12 months from the date of your divorce to make a claim for property or 2 years from the break down of a de facto relationship. Leave of the Court will be required to file for Consent orders outside of this time frame. Finalising your property can be kept simple for you and your family. We are a fixed fee firm so there are no hidden costs or surprises financially with your matter. You will be given clear and concise scopes of work on your behalf.

If you are thinking about finalising your property but haven’t gotten around to it, contact Susanne Grew, our Family Lawyer today at Maxwell and Lancaster solicitors on 07 4661 8822 or email your enquiry at [email protected].