Documenting Your Agreement
When you have reached an agreement about your property settlement, whether you have reached that agreement with your former partner directly or whether our family lawyers have assisted you in reaching an agreement, it is important to ensure that the agreement is formalised in a legally binding document. This is where our family lawyers can still add significant value even if you and your former spouse are amicable.
Property settlement agreements can be formalised in one of two ways:
Consent Orders; or
Financial Agreement.
Consent Orders
When you reach an agreement about your property settlement, asking the Court to approve your agreement by way of an order is an option. There are two documents required for the Court to make the Consent Order:
An Application for Consent Orders. This document outlines the Net Property Pool and other financial information. For example, your and your former spouse’s income, the amount of child support paid (if relevant) and the effect of the agreed division of the Net Property Pool. It also provides a summary of contributions and future financial circumstances. It is the only document that the Court is provided with that allows them to consider the relevant facts and be satisfied that the agreement reached is just and equitable in the circumstances of your matter.
Minute of Consent Order. This outlines the terms of your agreement. If a superannuation split or transfer of property to one spouse is included in your agreement, it is important that you obtain legal advice about the draft terms of the Minute.
These documents are then filed with the Court online via the Commonwealth Courts Portal. It is not necessary for the parties to attend Court however there is a filing fee payable to the Court at the time of filing the documents in the amount of $195 (current as at 10.01.2024).
The Registrar will then consider the proposed Consent Orders within 4 to 6 weeks. If the Consent Orders are approved, they will issue online from the Court.
Financial Agreements
The Family Law Act 1975 allows spouses to enter into Financial Agreements to formalise your property settlement. A Financial Agreement is not filed with the Court therefore a Registrar will not consider whether the terms are ‘just and equitable’ in your unique circumstances.
A Financial Agreement must strictly comply with certain requirements outlined in the Family Law Act 1975. This includes that each party to the Financial Agreement must receive independent legal advice prior to entering into the agreement. The solicitor who they obtain independent legal advice from will then sign a certificate attached to the agreement confirming that they have provided the required legal advice pursuant to the Family Law Act 1975.
A Financial Agreement is unable to be prepared and formalised without family lawyer intervention.