Need to know what to do to accomplish your property settlement and financial agreements successfully? Here's what you need to know!
5 mins. read *
Advantages of a Property Settlement and Financial Agreement
Relationship breakdown is so typical these days that, as a result, many people become concerned if they will lose their house, other assets, and a lot of money to their ex-partners. Even if you are divorced, absent a settlement, you both still retain the ability to make financial claims against each other.
You can't do it alone. Even if you try, it may be unenforceable and might also put your rights at risk. There are also things that need to be considered to finalise your agreement which will depend on your relationship and the complexity of the assets. You don’t want to have your partner on the advantageous side by not having a lawyer create and check the agreement. A legal expert’s help is needed in this situation.
There are a lot of advantages to reaching an agreement with the other party. Aside from the peace of mind, it also gives you the following:
Freedom to make your own decisions, but still guided by a lawyer. We can help you seek guidance from a legal expert by matching you with them.
- Reduction of the financial and emotional costs of legal proceedings
- Better continuing relationship as co-parents if you have children
- Chance to move forward and create a new life for yourself
- Improve communication with your ex-spouse and resolve your disputes easier
You can have a financial settlement at any time during or after the divorce proceedings. A binding property and financial agreement are not easy to do, and you cannot create a binding and legally enforceable settlement without asking for help from lawyers.
Settlement Before Going to Court
Court proceedings are time and emotionally consuming. Having a settlement prior to going to court will save you a lot of time and money. You also know what to expect and what each of you will receive. While by going to court, there is uncertainty because you wait for a judicial officer to decide for you. Most of all, save you and yourself from additional unwanted stress and pressure.
Additionally, the Court’s expectation that parties involved in family law disputes will only proceed n making an application to the Court when there are no other readily available remedies for resolving their dispute.
Let Essia Law help you get started.
Formalising the Property and Financial Agreement
To formalise your agreement on how your property should be divided without any court action, you may do this through either the following:
- Creation of a financial agreement
- Producing an agreement formalised by applying for consent orders in which you ask a court to make orders in terms of your agreement
What are Financial Agreements?
As provided in the Family Law Act 1975 , financial agreements are made by parties to a marriage or de facto relationship wherein they enter into a binding legal agreement about the financial arrangements should their marriage, or de facto relationship break down. These are also called as 'prenuptial agreements,' but the legal term is 'financial agreements'.
Family Law Act 1975 Sections 90B-90KA deal with financial agreements by parties to a marriage, and Sections 90UA-90UN apply to financial agreements by de facto couples. These are only applicable for financial agreements between de facto couples if the parties ordinarily reside in New South Wales, Queensland, Victoria South, Australia, the Australian Capital Territory, Tasmania, the Northern Territory, or Norfolk Island when the agreement was made.
Even before, during or after a marriage or de facto relationship, you can make a financial agreement. These agreements may cover the following:
- Financial settlement, including superannuation entitlements, after the breakdown of a marriage or a de facto relationship
- Financial support or maintenance of one spouse by the other after the breakdown of a marriage or a de facto relationship,
- Any unexpected issues.
The requirements for a financial agreement to be legally binding are the following:
- Signed the agreement, and
- Received independent legal and financial advice before signing.
Get a lawyer to help you accomplish all the documents needed for the property settlement and financial agreement.
Can a Court Declare an Agreement Invalid?
Yes. A financial agreement can be set aside by the court. Section 90K (married couples) and Section 90UM (de facto couples) of the Family Law Act 1975 provides for situations when a court can declare an agreement invalid.
Define Consent Orders
A written agreement that a court approves is called a “Consent Order”. Signing draft consent orders means that you are bound to follow the terms stated in the document and agree with the orders. The consent order has the same effect as a court order made by a judicial officer after a court hearing.
Consent orders regarding financial and property orders may deal with the following:
- Sale or transfer of property
- Superannuation splitting
- Spousal and child maintenance
You and your former partner can apply for consent orders, with the lawyer's help, to be made in the Family Court without going to court.
If proceedings originated in the Federal Circuit Court and reach an agreement, you may ask the Court to make orders by consent.
Applying for Consent Orders
You would need a lawyer for you to proceed and apply for a consent order successfully. Check these articles to have an idea about the step-by-step process of how to file consent orders.
- Apply for Consent orders
- Apply for Property and financial orders
- Applying to the court for orders fact sheet
Division of Superannuation After the Breakdown of a Marriage or De Facto Relationship