Settling outside of court

At the end of a relationship, it can be difficult to decide which path to take. But there are several reasons private negotiation might make the most sense when a relationship ends, especially when dealing with financial and property-related settlements.

A case decided in court will cost roughly $50,000 a person. When choosing whether private negotiations make the most sense, it's a good idea to think about the costs involved with litigation. Money from the settlement will likely be spent on legal fees if an agreement can't be reached privately. However, there are some costs associated with private settling (capital gains tax, stamp duty costs) that aren't incurred in court.

Couples are free to handle financial and property matters however they please. There’s no legal requirement to get court approval or file paperwork with the court. If a marriage or de facto relationship was brief and the property isn’t worth much, you might be able to keep the process as straightforward and confidential as possible. Many can come to an agreement on their own, in family dispute resolution or with legal help. Couples often choose to formalise these agreements after reaching a conclusion privately.

You can divide assets however you please––60–40, 0–100, 50-50; perhaps 0–0 if you mutually decide to give all of your combined assets to an unrelated party. You may agree on something that others find ignorant or unfair. It may be beneficial to enlist the help of a family dispute resolution practitioner and a lawyer, before going forward with the deal, so that he/she can highlight any potential long-term consequences.

Once terms of a settlement have been reached, you could technically split the funds and assets without formalising the arrangement. There are two advantages to formalising an arrangement: It provides certainty that an agreement is final, allowing the court system to legally enforce it.

A consent order––a written agreement approved by a court––is the most common method of formalising a private property agreement. Consent orders are low-cost, quick, confidential, easy to enforce, and generally low in conflict. As an alternative to the consent order, parties can create binding financial agreements regarding all or part (perhaps, just regarding the pension fund) of the belongings involved. Financial agreements often pertain to maintenance and child support.

In order to determine if a binding financial agreement makes sense, you’ll need to obtain a legal advice from a family lawyer.