Resolving your family law matter

By Justin Boughton, Solicitor BA, Grad.Dip.Ed(Sec), MA(Wrtg), LLBHons, Grad.Dip.Legal.Prac.  Hartley’s Lawyers,  

After attending two weddings in the last two weeks, I have been filled with the contagious joy of the happily married: love everlasting and a joint future built on each other’s dreams and hard work. Unfortunately, relationships do not always continue in the way they were initially planned.

This does not, however, mean that there needs to be a messy, acrimonious division of the everything accumulated during the relationship.

The law in Australia recognises that sometimes relationships end, and allows for grown ups to make planned decisions as to how they will deal with this outcome, should it come to pass. There are two recognised means under Law to provide a formalised separation of current or future assets: A Binding Financial Agreement, and Consent Orders.

Binding Financial Agreements

Everyone has heard of these, whether under their Australian legal term (or BFA), or under their American counterpart: the ‘Pre-nuptial agreement’.

In essence a ‘Binding Financial Agreement’ is an agreement between the parties, either prior to the dissolution of their relationship, or once both parties realise they wish to go their own way.

Unlike Consent Orders, BFAs are not filed with the Family Court, and thus do not need to be independently reviewed by the Court prior to being signed.

BFAs can be used to settle the following:

• Division of property;
• Spousal/Defacto Maintenance claims;
• Division of Superannuation.

It should be noted that a BFA can never deal with parenting plans or child support matters.

In order to be legally binding, the Family Law Act requires both parties to have received independent legal advice, and it is required that both the parties, and their legal representatives sign the document.

BFAs, unlike Consent Orders, do not, have the same requirement that the agreement be ‘just and equitable’. However, BFAs may be set aside if the Court determines there is a reason to do so, including evidence that one party did not fully disclose their assets or liabilities.

Consent Orders

Similar to a BFA, Consent Orders are a formalised agreement under the Family Law Act which are required to be filed with the Family Court.

Unlike a BFA, Consent Orders must fall within the scope of Orders which would likely have otherwise been made by a Judge under the relevant circumstances. The Court makes this determination based on what the Family Law Act determines to be ‘just and equitable’.

Consent Orders are most frequently used for:

Parenting Orders

Parenting Consent Orders relate to any agreements involving children including, but not limited to:

• Allocation of parental responsibility;
• The person with whom the child lives; and
• The times that the child spends with each parent.

Financial Orders

• Division of property of the relationship;
• Spousal maintenance; and
• Division of parties’ Superannuation.

Consent Orders require that both parties sign a Statement of Truth promising that they have given full and frank disclosure of all relevant assets and liabilities. If the terms of a Consent Order are breached, the aggrieved party can apply to the Court to enforce the terms of the Order, and the defaulting party may be subject to heavy penalties including paying for the aggrieved party’s legal costs.

Consent Orders also allow for a Court Registrar to sign on behalf of a party, should one side refuse to sign the Orders. This allows for the Court to hold a party accountable to ‘just and equitable’ Consent Orders even when that party is adamantly refusing to abide by the Orders.

Consent Orders may be set aside by the Court, provided that a suitably valid reason to do so. This is a high hurdle and will require evidence supporting the application.

If you would like more information regarding anything in this article, please do not hesitate to directly content our family lawyers in Melbourne on 03 9005 5867.

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