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.
What are financial agreements?
The Family Law Act provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as 'prenuptial agreements' but the legal term is 'financial agreements'.
Sections 90B-90KA of the Family Law Act deal with financial agreements by parties to a marriage. Sections 90UA-90UN apply to financial agreements by de facto couples. The Act only provides for financial agreements between de facto couples if the parties to the relationship were ordinarily resident in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.
You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
- financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship
- financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship,
- 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.
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 (married couples) and Section 90UM (de facto couples) of the Family Law Act.
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 Application for 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,
Consent orders cannot be made about:
- property and spousal maintenance between de facto couples that do not meet the criteria set out in the Family Law Act. If you have been in a de facto relationship and are considering making an application to the Family Court or Federal Circuit Court for financial orders you should read the New de facto property regime page on the Attorney Generals website. This page will give you information about whether or not you are eligible to apply to the Family Court or Federal Circuit Court.
- 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 131 272 before making an application. For more information visit the Child Support Agency website (www.humanservices.gov.au/customer/themes/child-support-and-separated-parents).
Once you have completed the Application for Consent Orders, 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 a filing fee to apply for consent orders.
For more information or to get an Application for Consent Orders kit click on the link.
You cannot directly apply for consent orders in the Federal Circuit 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 the Family Court or the Federal Circuit Court 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'.