The term given to the alteration of property interests, or the division of assets after separation is "property settlement".
When a marriage or de facto relationship ends the issues left to be resolved can often be complex. It is an emotional and often confusing time and it may not be easy for the individuals involved to see how those issues should be dealt with. They will also not know what their true entitlements to property are and may be misguided by many common urban myths about separation and divorce.
Misconceptions about Family Law property settlements
There are many misconceptions regarding property settlements including:
- That I can resolve my property settlement without the Courts or lawyers.
- You don't need to do a property settlement unless you own a house.
- I owned it before the relationship therefore it's mine free from any claim from my ex partner.
- My name is not on the Title of the house or mortgage and therefore I have no rights to the house.
- I worked hard in this business and it's mine free from any claim from my ex partner.
- I'll lose my right to bring a claim for a property settlement if I leave the home.
- I get to keep my inheritances and gifts I received free from any claim from my ex partner.
- Being a stay at home mum isn't valued and is not factored into a claim for property settlement.
Any agreement reached between the parties in respect of their property settlement should be formalised by way of Consent Orders through the Family Court of Australia, or in some situations through a Binding Financial Agreement.
These are the only two ways that your Family Law property settlement agreement can be made final
Family Law Consent Orders
When former parties to a marriage or de facto relationship reach agreement about their property settlement, an application can be made to the Family Court to formalise that agreement by making a Court Order that is referred to as a Consent Order.
You do not need to personally appear in Court to obtain a Consent Order, and neither does your lawyer. The application that is filed in the Court is reviewed by a Registrar of the Court to determine whether it is just and equitable (fair), before it is made as a Consent Order. We will advise you about this process and whether the Orders sought are just and equitable.
Unlike a Binding Financial Agreement, Parenting Orders can also be made by the Court as Consent Orders. This means that an Order can be made by the Court which covers both your property settlement and children’s issues..
We can prepare the necessary documents including both the Application to the Court for a Consent Order and drafting the specific Orders sought.
A filing fee is payable upon the filing of an Application for Consent Orders.
Binding Financial Agreements
If the parties want the agreement to be kept out of the public record, they can choose to formalise their agreement by way of a Binding Financial Agreement.
There are strict procedural and advice requirements that must be adhered to when formalising a property settlement by way of a Binding Financial Agreement. Each party needs to get independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
The process involves one party's lawyer drawing up a draft Binding Financial Agreement for the other party's lawyer to review. When both parties and their respective lawyers are happy with the terms and drafting of the Binding Financial Agreement, each party will receive independent legal advice about the agreement from their lawyer before the parties and their lawyers sign the agreement.
The main difference between this agreement and a Consent Order is that a Binding Financial Agreement is not reviewed by the Court and each party needs their own independent lawyer. There are more risks associated with formalising an agreement by way of a Binding Financial Agreement. If the requirements to make it binding are not complied with, it will not prevent a party from subsequently making an application to the Court for a property settlement. There are also more grounds to set aside a Binding Financial Agreement than there are for a Court Order. It is therefore our preference to formalise matters by way of Consent Orders where possible.
At Andersons, our Family Law team can assist by guiding you through this process. .
Your first step to security is to contact our experienced Family Law team.
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