It is crucial, at the end of a marriage or de facto relationship, to formalise your Family Law property settlement. Doing so will protect you, to the maximum extent possible, from your former-spouse applying to the Court for a property settlement years after separation.
Family Law property settlements can be formalised in one of two ways. First, Court Orders may be made by consent of the parties, or by a Judge on behalf of the parties after a hearing. Second, the parties may enter into a Financial Agreement. Both of these methods are intended to extinguish any rights and entitlements under the Family Law Act which arise as a result of your marriage or de facto relationship.
The best outcome in a Family Law matter is where you and your spouse are able to come to an agreement without resort to litigation. Upon negotiating such an outcome, we recommend the preparation of Consent Orders to finalise the Family Law matter.
Consent Orders are terms of settlement which, once prepared and signed, are sent to the Family Court of Australia for filing. A Registrar of the Court reviews the proposed terms of settlement and, if they provide for a “just and equitable” outcome, the Registrar will make the Orders binding and enforceable. There are a range of considerations for the Court in determining the justice and equity of a particular case. The relevant information, which enables the Court to make the assessment, is contained within an Application which accompanies the Consent Orders.
Once the Orders are made by the Court, they will have the same force and effect as though they were made by a Judge at the end of a final hearing.
A Financial Agreement is governed and endorsed by the Family Law Act, and, if drafted in accordance with the strict legislative requirements, is enforced like a commercial contract.
Unlike Consent Orders, Financial Agreements can be entered into at any stage of a relationship and may provide for how your respective and joint property interests are to be dealt with at the time of separation.
A Financial Agreement, once prepared, is executed by the parties without the Court’s oversight. The legislation requires both parties to a Financial Agreement to obtain independent legal advice before the Agreement can be enforceable.
Financial Agreements have their place in Family Law property settlements. But, for the vast majority of cases, we strongly recommend obtaining Consent Orders as opposed to a Financial Agreement.
What documents do you need when preparing for a property settlement?
Parties to a Family Law matter are obligated to provide full and frank financial disclosure upon request of the other party. This may include, but is not necessarily limited to, 12 months’ worth of bank statements, income tax returns, superannuation statements, company, partnership and trust documentation.
It is often the case that one party to a marriage managed the parties’ finances throughout the relationship. If you are unsure as to your spouse’s financial position, or are not in possession of relevant financial materials, your Taylor & Scott Lawyer will assist you in obtaining the relevant information to be able to formalise your property settlement.
Is there a time limit on property settlement?
A Financial Agreement may be entered into prior to, during or after a marriage or de facto relationship. Consent Orders are more typically entered into upon separation.
It is not uncommon for a separated couple to continue living under the same roof during the course of negotiating a property settlement.
Married couples may apply to the Court for a property settlement up to 12 months from the date of divorce. Note that a divorce is distinct from a separation. Parties are only eligible for divorce after they have been separated, whether under the one roof or otherwise, for a period of 12 months. But Consent Orders dealing with property may be, and often are entered into prior to a divorce taking effect.
De facto couples may apply to the Court for a property settlement up to 24 months from the date of separation.
You will need permission from the Court before it will make property settlement Orders if you apply outside of the above time limitation periods.
How can Taylor & Scott Lawyers assist with property settlement documentation?
Your initial consultation with an experienced Taylor & Scott Lawyer will involve a thorough review of all of the relevant facts of your case, including financial and non-financial contributions made by or on behalf of you and your former-spouse throughout your relationship, and post-separation. At the conclusion of the consultation, we will give you advice as to how the Family Law Act applies in your case, and provide a range of possible outcomes in the event that your matter was determined by a Judge on your behalf. The range of possible outcomes provides the basis for our advice to you in negotiating terms of settlement.
You may wish to engage Taylor & Scott Lawyers to advise you on and negotiate an outcome with respect to your Family Law matter. Alternatively, you may involve us in preparing formal terms of settlement based on an agreement which you have reached with your spouse.
In any event, Consent Orders and Financial Agreements are technical legal documents. Your Taylor & Scott Lawyer will ensure that the settlement documents are drafted meticulously, efficiently and in compliance with legislation.
At Taylor & Scott, We Care For You.