My spouse and I have agreed upon a property division, what should we do now? (Family Law)

Where you and your spouse have come to an agreement in relation to the division of your property, it is important that you document your agreement in an enforceable manner.

This is usually done by way of Consent Orders which are then filed at the Family Court of Australia.

Where both parties have agreed to the division of property, you must make full disclosure of your financial circumstances, though if you are satisfied with the stated position of the other party then a lengthy exchange of documents is not needed. The Application for Consent Orders will include financial details to which both parties will swear or affirm in the application that they “have no interest in property, superannuation, or a financial resource which is not described [in the application]”. To not provide full disclosure can have the effect of seeing the Order set aside.

Independent Legal Advice is not required to prepare and file the Application for Consent Order or the accompanying Minutes of Consent Order, however it is recommended to ensure that the documents are completed correctly and to ensure that your financial partnership with your spouse is legally severed.

The alternative to a Consent Order, is for you and your spouse to enter into a financial agreement pursuant to section 90C of the Family Law Act if you are not divorced or section 90D of the Act if you are already divorced.

Binding Financial Agreements will require full and frank disclosure of financial information by both parties. Section 90K of the Family Law Act provides that a financial agreement may be set aside if there was non-disclosure of a material matter. This ensures that a subsequent claim cannot be made that assets have been concealed and the matter reopened. Independent legal advice is required by both parties in the preparation and execution of a Binding Financial Agreement. For Binding Financial Agreements it is likely that each solicitor will seek to sight documents proving the financial circumstances of each party as they are required to sign a Certificate of Legal Advice and they must satisfy themselves of the factual basis of the agreement reached.

At Weatherly & Associates we provide a free first half hour consultation where we will discuss with you your personal circumstances and ascertain your desired outcome. We will then take you step by step through both of the above options to enable you to make the best decision possible.