If you agree about property and money
Reaching an agreement with the other party offers many advantages, such as:
- you make your own decisions
- you greatly reduce the financial and emotional costs of legal proceedings
- your continuing relationship as parents, if you have children, is likely to work better
- you are able to move forward and make a new life for yourself, and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
Why settle without going to court?
It saves you time and money if you can reach agreement between yourselves. You also know exactly what each of you will get, whereas there is uncertainty waiting for a judicial officer to decide for you. Additionally, long court proceedings can increase stress and add to the pressure that you and your family are under.
How you can formalise your agreement
You can agree on how your property should be divided without any court action. You do this through either:
- a financial agreement, or
- an agreement formalised by applying for consent orders in which you ask a court to make orders in the terms of your agreement.
Financial agreements
What are financial agreements?
Binding legal agreements about the financial arrangements should a marriage break down have been possible under the Family Law Act (Section 90B-90KA) since December 2000. Sometimes people know these agreements as 'prenuptial agreements' but the legal term is 'financial agreements'.
You can make a financial agreement before, during or after a marriage. These agreements can cover:
- financial settlement (including superannuation entitlements) after the marriage
- financial support (maintenance) of one spouse by the other after the marriage,
- any incidental issues.
For a financial agreement to be legally binding, you must both have:
- signed the agreement, and
- received independent legal and financial advice before signing.
See Sections 90D and 90DA of the Family Law Act for information about financial agreements during marriage and financial agreements after divorce.
Can a financial agreement be set aside?
A court can declare the agreement invalid, and set it aside. The situations in which that is possible are provided at Section 90K of the Family Law Act.
Consent orders
What are consent orders
A consent order is a written agreement that is approved by a court. Signing draft consent orders 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 former partner can apply for consent orders to be made without going to court.
How do you apply for consent orders?
Using the Family Court's Consent Orders kit, you ask the Family Court to make consent orders in the terms of your agreement. Consent orders about property and financial orders may deal with:
- transfer or sale of property
- splitting of superannuation,
- spouse maintenance.
Consent orders cannot be made about:
- property and spousal maintenance between de facto couples - that is, couples who have not been married. These are generally covered by state laws and you need to apply to the state courts except:
- if you live in the Australian Capital Territory and Northern Territory, where the Family Court (but not the Federal Magistrates Court) can deal with property disputes between partners in de facto relationships at the same time as hearing disputes about children, or
- if you live in Western Australia, the law is also different. For more information visit the Family Court of Western Australia's website located under website links.
- A child support departure application. This requires application to the Court or in some circumstances a child support agreement. This can be a complex area of law and you should obtain legal advice or contact the Child Support Agency on 131272 before making an application. For more information visit the Child Support Agency website located under website links.
Once you have completed the form in the Consent Orders Kit, file it by post or in person with the family law registry nearest you. There is no need for you to attend court.
There is no filing fee to apply for consent orders.
For more information or to get a Consent Orders Kit go to the Forms section of this website, call 1300 352 000 or visit your nearest family law registry.
You cannot directly apply for consent orders in the Federal Magistrates Court. However, if you already have a case in that Court and you reach agreement, orders can be made.
Before applying for consent orders, you should consider obtaining legal advice about the effect of any proposed consent orders. Before making the consent orders a court will need to be satisfied that the orders are properly drafted and that the terms of the agreement are " just and equitable" .
What if you cannot agree about property and financial arrangements?
You can apply to one of the Family Law Courts for financial orders. For more information follow the above left link at 'In this section' to the page titled 'If you don't agree about property and money'.