After the breakdown of a marriage or a de facto relationship, most separated couples will need a property/financial settlement to set out how the assets and liabilities of their relationship will be divided. It is important for a property settlement to be legally documented, and that may be in the form of Court Orders or a Binding Financial Agreement.
Consent Orders
A Consent Order, also known as a Court Order, is an Order made by the court with the consent of both parties. They are made by a Registrar without any court hearing and are enforceable in exactly the same way as if the orders had been made by a Judge. Consent Orders will be final, although in exceptional circumstances the court does have the power to set aside (void) and made new orders. It is the responsibility of the parties to prepare the Orders and provide the necessary information to the court.
Binding Financial Agreement
Binding Financial Agreements (BFA) can be entered into at any time before, during or after a marriage or de facto relationship. A BFA prior to marriage is also known as a pre-nuptial agreement. A BFA is known to measure finality and is enforceable and generally prevents either party from seeking a different outcome by commencing property proceedings in court. It should be noted however that BFA’s are not as final as Court Orders as there are some circumstances in which a BFA can be set aside (void) by a court. For example, a court may set aside a BFA that is seen as unconscionable or was entered into fraudulently.
Litigation
In the unfortunate event the parties are unable to reach a fair and equitable resolution in respect of their financial circumstances, the court may determine how the parties’ property and finances will be split after separation.
While the court can take into account the parties’ preferences, by law the court cannot make orders unless it considers it to be just and equitable. The parties should consider the financial and emotional burden of litigation before pursuing litigation. It may also involve taking periods of time out of work and/or from the care of children, to attend court hearings.
The law about how property of the relationship is divided is complex and will depend on the circumstances of your financial relationship. The assets and property of the relationship can include but is not limited to the family home, a business or company, trust, shares, crypto currency, superannuation, and other personal property (cars, jewellery and the like). The interests of third parties such as business partners and family members can also be a relevant consideration.
At Nicholas James Lawyers we are experts in providing advice on your entitlement and the options to finalise your property matters. Our expert family lawyers will guide you through the process of determining the value of your assets, as well as your financial and non-financial contributions, what your future needs will be and what is fair and equitable in your individual circumstances.
It is vital you obtain legal advice about your legal rights and entitlements before agreeing to a financial settlement.