Separation from your spouse is often a difficult and emotional time for people and with this, it often becomes complex for the separating parties to communicate effectively with one another.
We understand that people would prefer to not spend money on legal fees on their property settlement; in particular in cases when the parties have already reached an agreement about how to divide the property between them.
However, it is always best to seek some legal advice before trying to resolve your property settlement on your own.
Under the Family Law Act (1975) "the Act", there are only two manners is which a property settlement is legally binding on the parties:
- A Binding Financial Agreement that is a document that parties are required to sign in the presence of a separate solicitor after each have received independent legal advice.
- A Court Order from the Family Court of Australia known as "Consent Order" which is obtained administratively by filing a draft Minute of Order accompanied by an Application for Consent Orders..
There are also specific legal requirements under the Act that must be included when drafting a Binding Financial Agreement This is to ensure that your agreement is legally binding on both parties and prevents the other from making a further claim for property settlement at a later date or risk of the original agreement being set aside by the Court.
A Court Order must also be carefully drafted to ensure it carries out the true intentions of the parties.
A verbal agreement or any other written agreement, including a Statutory Declaration, is simply not legally binding on the parties and will leave you open to a claim for property settlement in the future.
There are many other reasons why you may need a lawyer to assist you with your property settlement, even if the parties are amicable. A lawyer can:
- advise you of your real entitlements under the Act and what you would be legally entitled to receive including any spousal maintenance and superannuation entitlements;
- advise you of the technical requirements needed for drafting property settlement agreements and Orders;
- ensure that the Orders are drafted clearly and unambiguously so as to avoid future doubt or confusion as to what they mean;
- ensure that all relevant assets are dealt with in the Orders and are properly described;
- include the appropriate provisions to rectify a situation where one party defaults in their obligations under the orders;
- ensure that your former partner is properly served with your application for property settlement if you need to start a court action;
- assist you in liaising and dealing with any dispute that may arise with your former partner on any issue not agreed to;
- attend court for you if required; and
- advise you on the associated legal issues that may be relevant to you such as care arrangements for your children, drafting of new Wills, and protecting your assets and estate.
It's understandable that it can be appealing for people to deal with legal matters without proper advice when so many resources are available on the internet. However, Property Settlement is a complex area of law and the Family Law Act (1975) provides for a number of legal issues that must be considered in property settlement. A matter can also be far more complicated than what was initially anticipated and if not dealt with correctly, may lead you to spend considerable money on legal fees in the future.
At Andersons, we regularly see clients who have sorted out the property settlement informally in the past and now their ex partner is coming back for more. In some cases we see this happening 15 - 20 years down the track. This is a very shocking and unpleasant experience for them to go through, having thought for so many years that the matter had been resolved.