Separation and Settlement Agreements
If you have separated from your partner whether de facto or spouse, and you have successfully reached an agreement on property matters, you can formalise that agreement and make it legally binding under the Family Law Act 1975 (Cth) (“the Act”).
You may wish to formalise your property settlement agreement by either:
consent orders; or
a Binding Financial Agreement (“BFA”).
Consent orders
The Court has the power to make orders by consent in property matters. Therefore, you may consider obtaining consent orders from the Family Court of Australia to reflect your property settlement agreement. An application for consent orders can only be filed in the Family Court of Australia.
You may make an application for consent orders to finalise your property settlement even if there are no current family law proceedings on foot with respect to property matters,.
To apply for consent orders, you will need to have your proposed property settlement recorded in the form of a draft consent order which:
sets out the orders the parties are asking the court to make;
states that it is made by consent of each of the parties; and
is signed by each of the parties.
Although it is recommended both parties obtain legal advice regarding the preparation of the draft consent orders, it is not legally required.
The party who has made the application for consent orders must satisfy the court as to why the consent orders are just and equitable and should be made.
When dealing with the application for consent orders, the Court will either make the orders sought in the draft consent order, request further information or dismiss the application.
After the consent orders are made by the Court, they will become legally enforceable orders of the Court, which can only be varied by application to the Court.
Parenting matters can also be included in the consent orders.
BFA
A BFA is an agreement between two parties (or former parties) to a marriage or de facto relationship, which governs property interests in the event of a breakdown in their relationship.
Pursuant to the Act, you may enter into a BFA for property matters after a de facto relationship breakdown or a marriage breakdown. If you and your partner were married, you may enter into a BFA while separated but still married, or after your divorce order has been made.
However, before a BFA can be signed, you and you partner are both required to obtain independent legal advice with respect to the drafted BFA and obtain a solicitor’s certificate certifying that the advice was given.
In contrast to consent orders which the court must determine as being fair, a BFA does not need to be fair. However, the Act provides for circumstances in which the BFA can be set aside.
Importantly, you cannot include parenting matters in BFA.
Where to next?
If your marriage or de facto relationship has recently broken down and you require advice or assistance with formalising your agreed property settlement, please contact our Family Law Team on (03) 9645 9500 or via email at emily.velo-craig@mertonlawyers.com.au
