Wherever possible, parties should attempt to reach their own agreement about the division of their property. This saves the expense, delay and worry of lengthy property proceedings which may take two or three years and cost thousands of dollars. They should, however, still seek legal advice before entering into negotiations and finalising any agreement to ensure that it is fair, has the effect that they intend and will stand the test of time.
If parties would like their agreement to be final and binding (so there is no reopening of the matter by either party), they will need to either:
- have their agreement approved by the Family Law Courts as consent orders; or
- have their agreement recorded in a Binding Financial Agreement (BFA).
BFAs can set out how the parties would like their property to be dealt with in the event of or following their separation and can be entered into either:
- before a married or de facto relationship begins [see s 90B for married relationships and s 90UB for de facto relationships];
- during a married or de facto relationship [see s 90C for married relationships and s 90UC for de facto relationships]; or
- after divorce or the end of a de facto relationship [see s 90D for married relationships and s 90UD for de facto relationships].
This may be more appropriate when both parties have obtained independent legal advice and where the property is fairly simple, for example, where the only property of substance is the matrimonial home, vehicles and household goods.
Where the property is more complex, for example where superannuation entitlements are to be split, where a company or business is involved, where a guarantee has been given or where capital gains tax liabilities may arise, it is desirable that each party have both independent accounting and legal advice before finalising any agreement.
Where the parties cannot agree, either party can apply to the Family Law Courts for the division of their property. See Applying for property settlement.
The content of the Law Handbook is made available as a public service for information purposes only and should not be relied upon as a substitute for legal advice. See Disclaimer for details. For free and confidential legal advice in South Australia call 1300 366 424.