Congratulations on coming to an agreement about how you and your ex-partner will divide your property. By coming to an agreement together you have saved a significant amount of time and money in legal fees! So what’s next? You must consider formalising the agreement in writing. To do this, you will need to either prepare a Consent Order or a Binding Financial Agreement.
Beware of finalising your property settlement informally. Agreements made between you and your ex-spouse are not binding until they have been formalised by either a Consent Order or Binding Financial Agreement. Finalising your matter informally could have unintended consequences such as the other party seeking more money from you before transferring the property to you.
Consent Orders are often the preferred way to conclude matters. Consent Orders are usually much less expensive, only requires only one party to have a solicitor and is sealed by a Registrar of the Court. A Consent Order also requires the agreement to be just and equitable. Usually, a Consent Order will take 6-8 weeks to be sealed and returned from the Court from the date of filing.
A Binding Financial Agreement on the other hand is not sealed by the Court and is often used in circumstances where the Court may not consider that the agreement is just and equitable. For a Financial Agreement to be Binding, it must:
Be in writing
Specify the section of the Act the agreement is made in accordance with
Be signed by both parties
Have a Statement of Independent Legal advice for each party from a qualified legal practitioner setting out the requirements from the Family Law Act 1975 confirming advice was given to each party before the Financial Agreement was signed
The Statements of Independent Legal Advice must be exchanged
Have one party retaining the original signed agreement and the other provided a copy
Have all other technical requirements of the Family Law Act are strictly adhered to.
Usually Binding Financial Agreements are more expensive particularly given the complex nature of these documents as well as the requirement for each party to have their own legal representation.
Parties must also keep in mind time limitations (for those who are married – one year from the date your Divorce Order comes into effect; for de Facto relationships – two years from the date of separation). For parties who are seeking to divide superannuation, the Superannuation Trustees must be notified in writing of the proposed splitting or flagging Orders prior to finalisation and are agreeable to them.
Making an appointment with a trusted Family Law Solicitor is ultimately the next step in your journey to finalising your property settlement formally. To prepare for your appointment we suggest:
Write down your assets, liabilities and superannuation (including agreed values)
Write down the agreement you and your ex-spouse have come to
Bring with you a copy of yours and your ex-spouses most recent financial statements
Bring any other documents or write down any other questions you might have.
We will then commence preparing the formal documentation, providing the draft Orders to the Superannuation Trustees (where applicable) and organising the signing and filing of your completed documents. Once the completed documents are sealed (for Consent Orders) or all requirements are met (for a Binding Financial Agreement), we can assist you in ensuring that the agreement is carried out as intended.
KD & Co Lawyers are here to help you navigate finalising your property settlement. We will provide you quality legal advice about what you should do to formalise and finalise your property settlement in the most cost effective and future proof way for your matter. Contact us today on (08) 7084 3060, via the contact form or online chat button to organise an obligation free appointment to see how we can work with you.