How can I change my property settlement orders?

While property settlements for married and de facto couples are intended to be final, there are occasions when they can be changed or set aside by the court.

Property settlements for married and de facto couples are governed by section 79 of the Family Law Act 1975 (Cth) (FLA).

Section 81 of the Act states: “the court shall, as far as practicable, make such orders as will finally determine the financial relationships between the parties to the marriage and avoid further proceedings between them”.

However, Section 79A of the FLA contains various provisions which allow parties to set aside an order. The provisions are limited and both parties must fit into at least one of the categories to make an application to set aside property orders.

One of the keys to a successful application is that both parties are in agreement and have given their consent to the application. Section 79A(1A) states:

“A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside”.

What constitutes consent?

Consent exists when the parties to the proceedings agree to vary or set aside previous orders. However, there are situations where consent may be implied, including when the parties have decided to reconcile or resume cohabitation after orders have been made in their matter.

What has the court found?

There are several cases (McCabe, Sommerville & Sommerville, Bourke v Bourke, Matthews & Matthews, and Ozick & Ozick) where the reconciliation of the parties constituted an implied consent to set aside previous property orders.

In light of Section 81 of the FLA, the Court will not lightly entertain a Section 79A application by one of the parties. Once the application has been submitted, the onus is on the applicant to prove that the previous orders should be set aside.

Streeterlaw’s Family Law solicitors have the knowledge and experience to provide you with the best possible advice in relation to your property settlement. Please contact us to discuss your situation by calling 8197 0105 or emailing advice@streeterlaw.com.au.