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Why should I formalise my family law agreement? – Divorce



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If a relationship breaks down, the best approach the parties can
take will include maintaining a ‘working relationship’ in
order to amicably reach an agreement. This will allow the parties
to save substantial financial and emotional stress by avoiding the
Court system. If the parties are able to reach an agreement on a
final basis, it is important that the parties follow the required
process to have this agreement finalised.

Options to Formalise

1. Consent Orders

A Consent Order is a written agreement that is sent to the Court
to be Sealed. When the Orders (together with an attached
Application for Consent Orders) are sent to the Court, the
Registrar will consider the orders to ensure that the proposed
agreement is “just and equitable” in relation to the
range of entitlements of the clients. If the Registrar is satisfied
that the orders are fair, they will then make the orders. These
orders will then be binding on both parties and the obligations
contained within will need to be complied with.

Consent orders can deal with parenting, property, and spousal
maintenance matters. Consent orders can only be prepared once the
parties have separated. Parties are not required to receive legal
advice with respect to the Consent orders prior to having the
orders sealed by the court, however it is strongly recommended that
you do obtain legal advice. Depending on the circumstances, Consent
Orders are generally a more cost-effective option for parties to
formalise their agreement.

2. Financial Agreement

A Financial Agreement is a document that can be entered into
before, during or after your marriage or de facto relationship. The
Financial Agreement will be used to deal with the financial
settlement matters however parenting arrangements cannot be
documented in a financial agreement.

Both parties are required to obtain independent legal advice
prior to executing a Financial Agreement document. One of the
reasons for this requirement is that there is no ‘fair and
equitable’ principles applied to the Financial Agreement and
the document is not sent to the Court for approval. For this
reason, there are very strict legislative requirements for a
financial agreement to be binding. If the requirements are not met,
or the circumstances for the parties significantly change, the
agreement may be at risk of being set aside. Therefore, generally a
Financial Agreement will be more expensive due to the complexities
to be dealt with by the solicitor when drafting and providing
advice.

Benefits of Formalising your Agreement

1. Minimise the risk of future claims by your ex-partner

If you are to reach an agreement and fail to formalise it, you
may face the risk that the other party may bring a subsequent claim
against your assets or property. If your agreement is formalised
using one of the prescribed methods of the Family Law Act as set
out above, the risk that the agreement can be varied or set aside
will greatly decrease. Formalising your agreement will provide you
with the sense of finality in your family law matter, knowing that
the agreement has been dealt with and is then binding on both
parties.

2. Transfer Duty Exemption

Another benefit of formalising your Family Law agreement is that
you don’t pay transfer duty on transactions that give effect to
a Court order or Financial Agreement made under sections 90, 90L or
90WA of the Family Law Act. This will mean that if one party is
keeping the matrimonial home, however requires the other party to
transfer their interest, there will be no transfer duty payable on
this transfer. Generally, for the transfer to be exempt from the
duty the Court order or financial agreement must:

  • Be a valid order or agreement;

  • Pre-date the transfer of property;

  • Specify the property being transferred;

  • Clearly state who the property is to be transferred to.

3. Enforce the Agreement

Some parties encounter difficulties when effecting the terms of
the agreement. This can include, having the other party sign
transfer/release forms, having the other party pay a sum of money
or having the other party vacate a property. Once an agreement is
formalised by way of Consent Orders or a Financial Agreement, it is
binding on both parties and the obligations contained within can be
enforced.

If you reach an agreement, and this is formalised with the
Court, you are able to apply to the Court in order to enforce an
obligation contained in your agreement. Depending on what the
obligation is, this may mean that the Court will sign required
documents on the other party’s behalf or may make further
orders enforcing the agreement. Read more about enforcement in this
article.

POPULAR ARTICLES ON: Family and Matrimonial from Australia

Can I do my own divorce?

Kells

Acting for yourself requires a certain level of understanding of the law and of Court practices and procedures.



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