Can my spouse and I just have an agreement between ourselves regarding our property division?

The answer is yes, of course you can, but it is highly inadvisable.

You should be aware that you (and your spouse) take a very serious risk by not formalising your agreement with the aid of at least one expert family lawyer between you. Most couples formalise their agreement by way of ‘Consent Orders’ which, as the name suggests, are orders made by the court with the consent of the parties.

What Consent Orders do is pronounce the full and final settlement between the parties, at law, so as to effect a ‘clean break’ (financially speaking). This means, that unless it can be proven at a later date that the Consent Orders should be set aside or varied because of such things as a miscarriage of justice by reason of fraud, duress, suppression of evidence (including non-disclosure of assets or relevant information), the orders made should stand the test of time. In other words, if one party wins the lottery or receives an inheritance after orders are made, the other party will not be able to come back for ‘another bite of the cherry’.

What Consent Orders also do is provide an exemption from stamp duty and/or capital gains tax (CGT) rollover relief where there is a transfer of property between the parties.

And if you think the expiration of 12 months from the date of your divorce order affords you protection to stop your former spouse from still coming to court and seeking property orders, think again. There is a provision in the law that allows a party to apply to the court out of time and, just to emphasise the importance of formalising an agreement between the parties as soon as possible, the case law is littered with examples of parties having been granted leave (permission) of the court to proceed out of time ranging from a few days to a few months, and sometimes decades. Indeed, in the matter of Ordway [2012] FMCAfam 624 (13 July 2012) the husband probably had the shock of his life when wife was granted leave to proceed 26 years after the parties’ divorce order was made.

Formalising your property settlement now for a few thousand dollars in legal fees, may very well save you tens and, in some cases, hundreds of thousands of dollars in legal fees and, potentially, payments or transfer of property to your ex-spouse later on when you may be forced to have the fight in court.

At Taylor & Scott “ We Care For You.”

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