If you agree on a property division, you can execute a financial agreement or apply for consent orders
There are two ways by which parties, whether married or partners in a de facto relationship, may agree to divide their property and money without the intervention of the court. They may execute a financial agreement that will settle the financial issues in the event of a breakdown of the relationship or apply for consent orders based on the agreement.
The agreement may be entered into before, during and after the marriage or relationship and covers:
- Financial settlement (including superannuation entitlements);
- Spousal or de facto partner maintenance;
- Other relevant matters.
Financial agreements are sometimes referred to as prenuptial agreements. Financial agreements are governed by the Family Law Act 1975 both for marriages and de facto relationships. However, financial agreements as to de facto couples are only applicable to those who are residents of New South Wales, South Australia, Tasmania, Victoria, Queensland, Australian Capital Territory, Northern Territory or Norfolk Island at the time the agreement was executed.
A financial agreement is valid and binding if it was signed by both parties and they also both received independent legal advice before signing. However, courts are not precluded from invalidating the agreement, and usually, the ground is if the agreement is unfair and inequitable to a party.
A consent order is a written agreement that is approved by the court. The application for a consent order is filed with the family law registry. Parties do not need to go to court anymore. So, in consent orders what parties need to do is bring their agreement to the court and have it formalized. The court will just basically follow what is written on the agreement and issue a consent order. The consent order then becomes legally enforceable. While consent orders cover transfer or sale of property, splitting of superannuation and maintenance, it cannot be made about:
- A child support departure application;
- Property and spousal maintenance concerning de facto couples who do not meet the criteria set by the Family Law Act.
It is always encouraged for parties to enter into agreements. This allows them to have control over their issues and how to settle them amicably. Good relations are preserved, and the hassles of going to court are avoided.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.