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 upon separation and before entering into negotiations and finalising any agreement to protect their interests, to ensure that the agreement is fair, has the effect that they intend and will stand the test of time.
Parties to a separating relationship should seek independent legal advice upon separation, before entering into negotiations and finalising any property agreement .
Family Dispute Resolution may be available from some providers, such as Relationships Australia, to assist with the negotiation of property settlements. Please see the Relationships Australia publication, A fair share: Negotiating your property settlement for more information about FDR for the purposes of property settlement, and the procedures and steps involved.
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:
Consent Orders or Binding Financial Agreement
The Family Court has information about how to apply for consent orders on its website, How do I apply for consent orders? as well as an Application for Consent Orders Kit and a proposed orders template. In dealing with consent orders, the Family Court may make the consent orders, require a party to file additional information or dismiss the application [see Family Law Rules 2004 (Cth) r 10.17]. The Court must be satisfied as to why the consent orders should be made.
Binding Financial Agreements 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 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 principal residence, 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 legal and financial advice before finalising any agreement.
Where the parties cannot agree, either party can apply to the Court (either the Federal Circuit Court or the Family Court, see Which court?) for the division of their property. Time limits apply.
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.