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You have reached an agreement with your former spouse. What do you do now?
Finalising your agreement into a legal document is important. It will help protect your assets and prevent your former partner from seeking to have an entirely new arrangement made or trying to make a new claim against your assets in the future.
There are two ways of formalising your family law property settlement agreement that ensures the agreement is legally binding:
- Consent Orders made by the Family Court of Australia or
- Financial Agreement entered into between you and your partner.
Documenting your property settlement by signing a letter or a statutory declaration will not be considered legally binding and you may not be able to enforce the terms of the agreement.
- A Consent Order is a written agreement which documents an agreed division of property within a marriage or de facto relationship. The proposed Orders and an Application for Consent Orders (that details each parties respective assets and liabilities) are filed with the Family Court where a Registrar will review the terms of the agreement.
- A Consent Order will finalise your property settlement with your partner.
- It is able to deal with the transfer or sale of property, payment of a sum of money to a spouse or splitting superannuation.
- Consent Orders can be for property or parenting matters alone, or deal with both at the same time.
- Appearances in Court are not required.
- The Order sought must be within range of the split of property the Court would consider as “just and equitable”.
- A Financial Agreement can be entered into before, during or after your marriage or de facto relationship.
- Can be used to deal with financial settlements, including superannuation and financial support or maintenance.
- Of utmost importance, for this type of agreement to be of legal effect, you and your former/current partner must have signed the agreement after each receives independent legal advice. The lawyer must sign a statement to confirm that he/she gave you advice about the advantages or disadvantages of entering into the arrangement.
- Very strict legislative requirements must be followed to ensure that the agreement is binding and enforceable.
- Financial Agreements are at risk of being set aside if it not drafted correctly or the legal requirements are not met.
- A Financial Agreement is able to be used when the agreement is not “just and equitable”.
If you have reached an agreement with your former spouse/partner, we recommend that you contact one of South Geldard Lawyers experienced Accredited Specialists or Family Law solicitors to obtain legal advice regarding what your property entitlements may be before formalising any legal documents.
It is important to seek specific advice regarding your circumstances as this fact sheet provides general information only and does not constitute legal advice.