Following on from the first part in the series, what do you do when you reach an agreement with your former spouse?
There are a few different ways to reflect the agreement that you have reached:
Informal agreement
These are generally made between parties and without consultation from legal representatives. We always recommend that you obtain legal advice to reflect your agreement, so it is legally enforceable.
Binding Financial Agreements (BFA)
These can be useful in some circumstances to divide property between parties. However, it is important to get independent legal advice before you enter into a BFA, to ensure that it is drafted accurately, having regard to the requirements under the Family Law Act 1975 (Cth).
Please note: the risk with BFAs is that a party can apply to the Court to have the BFA set aside, if they are not drafted correctly or parties have not adhered to the requirements (e.g. the requirement to take legal advice before signing).
Sometimes, BFA’s can helpfully be used for discreet topics such as spousal maintenance, in conjunction with an Application for Consent Orders.
Consent Orders
This is an Application made to the Federal Circuit and Family Court of Australia (FCFCOA), after an agreement has been reached between parties. Parties file an Application for Consent Orders, together with Proposed Orders Sought.
The Judicial Registrar who is assigned the Application will then consider the contributions that each of the parties made, the future needs of the parties and whether it is just and equitable in the circumstances for the Proposed Orders to be made.
Once the Court makes the Orders, these are legally enforceable Court Orders. This means that if one party breaches the agreement that was reached, the other party can approach the court and make an Application, setting out the nature of the breach.
The Application itself is quite inexpensive and provides a great level of certainty to parties that it is legally enforceable.
What happens if I cannot reach agreement with my former spouse and we have commenced proceedings in Court?
If an agreement cannot be reached between parties via negotiations even after proceedings are commenced, it may be necessary for a Court to make a determination about an alteration of property interests.
In this regard, a matter will be set down for a final hearing before a judge in the FCFCOA. At the conclusion of the hearing, parties will receive a judgement. This will contain the orders that are made on a final basis. Judgements can sometimes take months or even years to be received.
At Streeterlaw, our team of family law solicitors can assist you with all aspects of your family law matter, whether it be reflecting the agreement you have reached with your former partner in a legally enforceable form, or representing you at a final hearing in the FCFCOA. Call our office today on (02) 8197 0105 or email contact@streeterlaw.com.au to get in touch with one of our solicitors today
