Reaching an Agreement

How often have you seen bitter divorce battles in the courts? How many friends do you know who are no longer in a relationship, going back and forth between the courts for more money, more access, more of this and that? You may not be directly related, but it can stress, and tire you out just watching.

One way all of this drama can be avoided is to reach an amicable agreement outside of the court room. These agreements can be made at the start of a relationship, to protect your assets if one party brings a lot more to the relationship than the other; during a relationship to set out what would happen in the unfortunate event the relationship soured, or after the relationship has broken down, to avoid costly court dates, and to keep things civil and calm.

There are two main ways agreements can be formalised. If they are not formalised in either of the following ways, it means either party can bring an Application in Court to seek Orders for a property settlement, long after you thought that you had agreed on how to divide your assets. That is not a risk worth taking as your circumstances may have changed in the intervening time.

1. Financial Agreements. These are similar to what is colloquially known as “pre-nuptial agreements” and are legally binding. Under Sections 90B-90D ( for married couples) and 90UB –90UD ( for de facto couples ) of the Family Law Act, these agreements cover the following:
   1. Division of property, finances and debts after a marriage or relationship breakdown
   2. Superannuation 
   3. Spousal maintenance.
   4. Other incidental issues. 

For these agreements to be binding, both parties must have had legal advice prior to signing, and of course, both parties must sign them.  There is no need for Court approval but in the event one party does not comply with the terms of the Agreement, then they can go to court and seek to have the Agreement enforced.

2. Consent Orders. These are written agreements between parties which are formalised and approved by the court, and as such, are legally binding.
   Consent orders can apply to the following issues:
   1. Transfer or sale of a property.
   2. Splitting up of superannuation
   3. Spousal maintenance.
   4. Living arrangements for children

Consent orders are filed with the Family Law Court, and once the Court is satisfied they are properly drafted and that all terms of the agreement are ‘just and equitable’, the Orders are approved.

These are two ways in which you can reach agreement relatively amicably as well as speedily. If you cannot reach an agreement between you and the other party, we can negotiate with them or their lawyers on your behalf. More often than not this works, and you have settlement of your property and children’s issues with the least amount of stress and cost to both of you.

However, sometimes it doesn’t. Either one of the parties then needs to bring an Application in either the Family Court or the Federal Circuit Court. An application for this must be made within 12 months of your divorce becoming final, or within 2 years of a De Facto relationship ending.

A decision will be made by the courts, which both parties must adhere to. Often these decisions are not what parties are happy with, but must accept. Remember there are no winners or losers in a family law battle. And always, this process costs more. So try and make an agreement between you and the other party, out of court.

Speak to a lawyer to find out what your legal entitlements and obligations are before you negotiate so you go into a discussion with your partner fully informed and able to pitch your expectations appropriately. This is what is likely to lead to successful negotiations.