In this article, we look at how long divorce takes in Australia.
Divorce can be a complicated process to navigate as it requires extensive legal procedures and paperwork. While the standard divorce process in Australia usually takes a few months to be finalised after submitting an application, the total duration of divorce proceedings and everything that they entail can vary significantly as many factors come into play.
Let’s take a closer look at the factors that influence how long a divorce takes.
Factors That Influence the Duration of a Divorce
The legal framework in Australia provides certain guidelines and timelines for divorce, but individual cases can vary widely in their duration. The average divorce takes around 3-4 years from separation to a finalised settlement.
It’s also important to note the distinction above between the divorce itself, which is simply the legal severance of the marriage, and everything else that it entails such as devising property settlement, calculating child support, determining spousal maintenance etc. While the actual time between filing for divorce and having a divorce order issued by the court usually only takes several months, the rest of the proceedings may take much longer.
Divorce is usually granted in two steps:
Step 1: Court order
If all the requirements are met and the court is convinced that adequate provisions have been set for any children involved in the relationship, a court order will be issued. However, it’s crucial to recognise that a period of time must usually pass before the order takes effect.
Step 2: Finalising the Divorce
Following the issuing of the initial court order, there is a standard waiting period. The divorce order generally becomes absolute 1 month and 1 day after the order is made, marking this date as the official divorce date. However, there are circumstances where the court might have compelling reasons to delay the granting of the divorce beyond this timeframe.
Common Delays in the Divorce Process
- Disputes Over Child Custody or Property: If the parties cannot agree on these matters, the court may need to step in, which can extend the process by several months or even years.
- Non-Response to Divorce Papers: If one party fails to respond to the divorce application, the process can also be delayed. The court may require additional hearings or documentation before proceeding.
- Unable to Serve Papers: If you struggle to serve your spouse with sealed copies of the divorce application, this will also delay the process. This is only relevant if you make a sole application for divorce.
- Missing or Incorrect Documentation: Filing incomplete or incorrect paperwork can lead to delays as the court will not process the application until all required documents are submitted.
- If the other party objects: This can significantly delay the process by requiring additional hearings or evidence to address the disputes.
Now let’s look at the full timeline and process of separation, divorce proceedings, and all other relevant factors to get a more comprehensive picture of the duration between the initial separation, the finalised divorce, and property settlement.
The Process and Timeline of Separation and Divorce Proceedings in Australia
While each situation may have unique circumstances, there are general procedures in place that influence how long divorce takes in Australia to ensure fairness and due diligence.
- Initial application: Once you’ve decided to legally end your marriage, the first step is to file an application for divorce. This can be a sole application (filed by one party) or a joint application (filed together by both parties). A sole application will need to be served on the other party in a specific way and a further document will need to be filed.
- Mandatory waiting period: In Australia, there’s a mandatory 12-month separation period before the court considers your divorce application. This means that from the time you and your partner decide to separate, you must wait at least 12 months before you can file for divorce.
- Response and possible mediation: Once the application has been filed and served (in case of a sole application), the other party has 28 days (if they’re in Australia) or 42 days (if they’re overseas) to respond. If disagreements arise — for instance, disputes over the date of separation or arrangements for children — mediation may be suggested. Mediation can extend the duration of the divorce process, as it involves meetings, discussions, and potentially multiple sessions to arrive at mutual agreements.
- Final hearing and judgement: After all the above stages are completed, the divorce will progress to a final hearing. In many cases, especially for joint applications, you may not need to attend court. The judicial officer will review the evidence, ensure all criteria are met and, if everything is in order, grant the divorce. Once the divorce is granted, there is a further wait of one month and one day before the divorce becomes final, as outlined above.
While the procedure might seem straightforward and sequential, each step can carry emotional, logistical, and legal significance. And though the timelines may vary depending on individual circumstances, understanding the general outline ensures you’re better prepared for the journey.
How Long Does Property Settlement Take?
Beyond the emotional turbulence of a divorce, the practical implications concerning assets, property, and finances are often significant. Property settlement is an essential aspect of many divorces, ensuring that both parties can move forward with clarity and security regarding their financial futures.
A divorce property settlement refers to the process through which assets, debts, and finances are divided between both parties after separation. This isn’t just about tangible assets like a home or bank accounts; it can also encompass superannuation, investments, and other financial interests.
Find out more about property settlement after divorce.
Much like the divorce process itself, the duration of property settlement can be influenced by several factors:
- Complexity of assets: If the couple has multiple assets, overseas investments, or complex financial portfolios, or a business for example, valuations (and the engagement of experts) and extensive disclosure may be needed. This can cause delay in some matters.
- Level of agreement: A mutual agreement on the division of assets can make the process swifter. If both parties agree on who gets what, it’s likely to be faster than situations where disputes arise and mediation or legal intervention becomes necessary.
- Legal processes: Ongoing negotiations can draw matters out and cause delay, as can instituting court proceedings. Mediation can often be an effective way to reach agreement sooner.
It’s worth noting that while the divorce might be finalised, property settlement can take place either before or after the divorce order has been made. However, it’s crucial to be aware that once a divorce order takes effect, a 12 month time limit commences for parties to file in the Court for property settlement and/or spousal maintenance, or leave may need to be sought to file out of time. For separated de facto couples, this time limit is 2 years from the date of separation. Such leave applications can be expensive and success is not guaranteed. Find out more about how assets are divided in a divorce.
Our Divorce Lawyers Can Help You Through This Process
For more information on how long divorce takes in Australia, reach out to Daykin Family Law today.
Whether you are separating from your de facto partner or spouse, there are often many decisions to make, from the division of finances and property settlement to arrangements for child support and divorce. Our divorce lawyers are here to help you every step of the way. Shannon Daykin is an Accredited Family Law Specialist with extensive experience in all aspects of family law. Contact Daykin Family Law today to arrange a reduced fixed fee initial consultation.
What happens when your ex-husband is delaying the property settlement? Or your ex-wife? We look to address this frustrating issue and provide practical advice on how to move forward. Understanding your rights and the legal options available can help you navigate this challenging situation.
Understanding Property Settlement
Property settlement refers to the division of assets and liabilities between parties following a separation or divorce. This process ensures both parties receive a just and equitable share of property (assets, liabilities, super, financial resources). In Australia, property settlement is governed by the Family Law Act 1975, which provides a legal framework for resolving these disputes.
The goal is to reach an agreement that considers each party’s financial and non-financial contributions, as well as their future needs. This includes the value of properties, savings, investments, and any debts incurred. Achieving a just and equitable property settlement can help both parties move on and rebuild their lives post-separation.
If you are currently facing the end of a relationship and need assistance with property settlement, contact Daykin Family Law for expert guidance and support.
Legal Obligations and Timeframes
Timeframes for Property Settlement
For married couples, property settlement applications must be filed in the court within 12 months of the divorce being finalised.
For de facto relationships, the timeframe is two years from the date of separation.
For applications out of time, the court’s leave must be sought.
Legal Obligations
Both parties are legally obligated to provide full and frank disclosure of financial information. This includes details of assets, liabilities, income, and any other relevant financial resources, as some examples.
Court Involvement
If an agreement cannot be reached through negotiation or mediation, it may be necessary to involve the court. The court will consider various factors to determine a just and equitable settlement, including the contributions of each party and their future needs.
Steps to Take
- Seek Legal Advice: Consult with an expert family lawyer to understand your rights and obligations.
- Gather Documentation: Prepare all necessary financial documents to facilitate the process.
- Consider Mediation: Attempt to resolve disputes through mediation before resorting to court.
Common Reasons for Delaying Property Settlement
Financial Gain: An ex-husband, ex-wife or partner might delay property settlement to gain a financial advantage. For example, they might hope to negotiate a more favourable outcome or benefit from changes in market conditions.
Emotional Reasons: Emotions can play a significant role in delays. An ex-husband or wife may find it difficult to let go or may use the delay as a means of maintaining control or prolonging the connection.
Lack of Co-operation: Sometimes, delays occur simply because one party is uncooperative or unwilling to engage in the settlement process. This can sometimes stem from a lack of understanding, unwillingness to compromise, or a desire to complicate the process for the other party.
Disputes Over Valuation: If both parties cannot agree on the value of shared assets, the settlement process can become prolonged as valuations are reassessed and negotiated.
Legal and Procedural Delays: Legal complexities and procedural requirements can also contribute to delays. This might include incomplete documentation, waiting for court dates, or navigating mediation processes.
Steps to Encourage Co-operation
Open Communication: Clearly communicating honestly and openly your concerns and the impact of the delay may encourage your ex to engage in the process.
Mutual Benefits: Highlighting the benefits of finalising the settlement such as, financial independence, closure, and the ability to reinvest assets for both parties can also encourage co-operation.
Mediation: This involves a neutral third party who helps facilitate discussions and negotiations. It provides a structured environment to address concerns and reach mutually agreeable solutions. Mediation can often help in resolving disputes outside of court.
Legal Counsel: Lawyers can help guide you through the process and also communicate on your behalf, reducing direct confrontation and ensuring that legal procedures are followed.
Formal Requests: If informal attempts to resolve the delay are unsuccessful, a formal request to progress towards final settlement through your lawyer may be necessary.
Court Intervention As a last resort, applying to the Federal Circuit and Family Court for orders to essentially force property settlement is sometimes necessary.
How to Progress a Property Settlement
When your ex-partner is delaying property settlement, and all efforts to encourage co-operation have failed, it may be time to consider legal action.
- Consult with an Expert Family Lawyer
An expert family lawyer will guide you through the process, explain your rights, and help you understand your options. Having legal support ensures you take the correct steps from the start.
- File an Application with the Federal Circuit and Family Court of Australia
If delays persist, your lawyer can help you file an application with the Federal Circuit and Family Court of Australia. This application essentially asks the court to step in and make binding decisions about the division of assets. You’ll need to provide documents such as a financial statement and an affidavit outlining your case.
- Engage in Mediation or Conciliation
Often, the court will order both parties to attend mediation or conciliation sessions. These are opportunities to resolve the dispute with the help of a neutral third party. This step is crucial as it is an opportunity to settle without going to a trial, which can save parties financially and emotionally.
- Prepare for a Court Hearing
If mediation doesn’t result in an agreement, the matter will proceed to a final court hearing. Here, both parties present their arguments, and the court will decide on a just and equitable division of property. The court considers, among other things, contributions, future needs, and other relevant factors to ensure an equitable outcome.
- Enforce the Court’s Decision
Once the court has issued its orders, they are legally binding. If your ex-partner does not comply, further legal action may be necessary. You can apply for enforcement orders to ensure the settlement is carried out as decided by the court.
- Keep Detailed Records
Throughout this process, maintain comprehensive records of all communications and actions taken. This documentation can strengthen your case in court and is essential for enforcing any orders made.
The Importance of Legal Advice
Seeking legal advice ensures that your rights are protected, and the process is handled efficiently. At Daykin Family Law, our experienced team is here to guide you every step of the way, offering empathetic and clear advice personalised to your unique situation. Don’t face these challenges alone—reach out to Daykin Family Law for expert support and start moving forward with confidence.
Binding Financial Agreements (BFAs) offer couples and separated couples a sense of certainty and control over their financial matters. These agreements, often set up before or during a marriage, as well as after separation, can regulate finances during the relationship and/or outline the distribution of assets and financial resources, among other things, in the event of separation or divorce. Designed to provide clarity and prevent disputes, BFAs are essential for some in planning the financial aspects of the breakdown of a relationship. Are BFAs different to prenups? No, it is just a different terminology.
What is a Binding Financial Agreement?
A Binding Financial Agreement (BFA) is essentially a written agreement between two or more parties concerning a range of matters such as the distribution of property in the event of separation or divorce, regulation of finances during a relationship and spousal maintenance as some examples. Typically BFAs are signed either before cohabitation, before marriage (prenuptial, or prenup as they are sometimes known), during the relationship, or after separation or divorce. This agreement allows couples and separated couples to manage their financial affairs without court intervention.e
For a BFA to be legally valid, specific requirements must be met. These include a full disclosure of each party’s financial situation, ensuring the agreement is entered into voluntarily without coercion or fraud etc. Both parties must receive independent legal advice before signing the agreement. This helps each individual understand their rights, the advantages and disadvantages of entering into the BFA and the effect of the BFA on their rights. The document must be in writing and signed by both parties, making it a formalised agreement recognised by Australian courts.
Not sure if you need a BFA? Check out our article that discusses if you need a Binding Financial Agreement or not.
Key Benefits of a Binding Financial Agreement
Here are a few of the benefits of signing a BFA.
Clarity and Protection
BFAs provide clear guidelines for asset and financial management upon the breakdown of a relationship. They ensure transparency in how assets will be divided or managed, offering invaluable clarity.
Reduces Conflict
By setting predetermined terms, BFAs can help avoid emotional and financial stress from legal disputes over assets. They’re especially beneficial in relationships with significant property and assets, protecting individual interests.
Predictability
BFAs offer security and predictability, aiding in planning for potential relationship breakdowns. This feature is crucial for effective long-term financial planning, allowing informed decisions on investments and property.
Proactive
BFAs provide a proactive strategy for managing financial relationships. They allow couples to autonomously define their financial futures and protect their assets, leading to more harmonious financial relationships.
Can a Binding Financial Agreement Be Overturned?
Binding Financial Agreements are designed to provide stability and certainty, however, certain circumstances can lead to these agreements being challenged or even overturned which is known as being “set aside”.
One of the grounds where a BFA may be overturned is in situations where the agreement was obtained by fraud (including non-disclosure or a material matter). This can include the concealment or misrepresentation of assets, financial resources and/or income as some examples. For example, if there is evidence that one party has failed to disclose significant assets or Trust interests at the time of signing the BFA, this could lead to a party applying to the court for orders to set the BFA aside.
Undue influence or coercion can also be other grounds for challenging a BFA, relevant to a party engaging in conduct that was, in all of the circumstances, unconscionable. This can occur when one party is pressured into signing the agreement without free will, often due to an imbalance of power within the relationship. It is important that both parties enter into a BFA willingly and without undue pressure.
If the BFA was entered into without proper legal advice, or if the legal advice provided was inadequate, this could be a basis for overturning. Australian family law mandates that both parties receive independent legal advice to ensure that they fully understand their rights and the terms of the agreement etc.
Material changes in circumstances, especially those relating to a child of the relationship and hardship, can also lead to a BFA being challenged in the Court by a party. In such an application, the Court would generally consider whether as a result of the change, the child or a party who has caring responsibility for a child will suffer hardship if the Court does not set the BFA aside.
So while BFAs provide a solid framework for managing financial relationships, they are not watertight and there are no guarantees that they won’t be challenged in certain circumstances set out in the Family Law Act 1975 (Cth). Parties entering into a BFA should ensure transparency and proper legal guidance from someone like Daykin Family Law to uphold the strength of their agreement.
The Process of Challenging a BFA
Contesting a Binding Financial Agreement in court is a process that involves several steps.
The initial step in challenging a BFA typically involves seeking expert legal advice. A family lawyer can assess the validity or strength of your claim against the BFA and legislation, and guide you through the legal process. They can help identify if there are grounds for the challenge/application to set aside a BFA, such as referred to above.
Once a valid basis for contesting the BFA is established, the next step may be to seek to negotiate with the other party to resolve the issues. This can take place via lawyers or in a mediation for example.
In some cases, a court application may be necessary. This application should detail the evidence upon which the application to set the BFA aside is made. The legal process may involve pre-trial conferences or mediation attempts to reach a resolution without a full court hearing.
If the matter proceeds to a final hearing in court, both parties will present their arguments and evidence. This stage is where the roles of legal counsel are most pronounced. Solicitors assist in the preparation of trial documents such as affidavits and Case Outlines. Lawyers (generally Barristers) for each party will make submissions, test the evidence under cross-examination of witnesses and present evidence to the court. The Judicial Officer will consider the evidence and make a decision as to whether orders should be made for the BFA to be set aside.
Case Studies: Hypothetical Examples of Overturned BFAs
To illustrate how BFAs can be challenged and overturned, let’s examine a few hypothetical scenarios.
Scenario 1: Concealment of Assets
John and Sarah signed a BFA during their marriage, agreeing on the division of their assets in the event of separation. Years later, during a dispute, Sarah discovered that John had undisclosed investments worth a significant sum at the time of signing the BFA. Sarah sought legal advice and contested the BFA in court. The court found that the BFA was obtained by fraud due to John’s failure to make appropriate disclosure to Sarah at the time of entering into the BFA. The BFA was set aside.
Scenario 2: Coercion and Undue Influence
Emma and Mark entered into a Binding Financial Agreement shortly before their marriage. Emma, at the time, felt pressured by Mark and his family to sign the agreement quickly. The wedding invitations had gone out and Mark presented Emma with a BFA 1 week before the wedding. Mark told her to sign it or she’ll be on the streets. Years into the marriage, when the relationship soured, Emma challenged the BFA on the grounds of unconscionable conduct by Mark. The court, upon reviewing the circumstances under which the BFA was signed, set the BFA aside.
Scenario 3: Issues with Independent Legal Advice
Liam and Chloe entered into a BFA soon after they married. Chloe spoke to a lawyer for advice and showed her the BFA before she signed it. The lawyer spent 15 minutes with Chloe and did not discuss the BFA terms with her, just BFAs generally. Chloe signed the BFA during the meeting. Later when the relationship broke down, Liam’s lawyer sent correspondence to Chloe about putting the BFA’s terms into effect. Chloe did not understand what was being put to her as she never received legal advice on the terms or what impact the BFA would have on her. The terms were harsh against Chloe and mostly favoured Liam. Chloe applied to the court for orders that the BFA was not binding, one of the reasons being that she did not receive independent legal advice under the legislation. Liam tried to argue that despite this, it would be unjust and inequitable if the BFA were not binding on the parties and he sought orders declaring that the BFA is binding on them both. Liam failed in his arguments and the court made orders as sought by Chloe.
Each of these scenarios underscores the importance of full disclosure, voluntary agreement and quality advice in the preparation and negotiation of BFAs. They also highlight that while BFAs can be binding, they are not immune to legal scrutiny and can be overturned in certain circumstances under the legislation.
How to Ensure Your BFA Stands the Test of Time
Creating a Binding Financial Agreement that endures over time and withstands legal challenges involves careful consideration, transparency, and adherence to legal standards. Here are some tips and best practices to ensure your BFA is robust and enduring:
Prioritise Full Disclosure
One of the most critical aspects of a strong BFA is the full and frank disclosure of both parties’ respective financial circumstances. This transparency minimises the risk of future disputes over undisclosed assets.
Seek Independent Legal Advice
Each party must obtain independent legal advice before entering into a BFA. This ensures that both individuals fully understand their rights and the implications of the agreement, among other things. The quality of legal advice is important also given case law on this issue.
Ensure Fairness and Reasonableness
A BFA that is heavily skewed in favour of one party may be more likely to face challenges. Crafting an agreement that is fair and reasonable for both parties can enhance its stability. Consider the future implications of the agreement, especially in scenarios like changing financial circumstances or the care of children.
Review and Update When Need Be
Circumstances change, and so might the relevance of a BFA. Regular reviews of the agreement in light of new life events, such as the birth of a child or significant changes in financial status, can ensure the BFA remains applicable and fair. Amendments can be made with the consent of both parties to reflect these changes and there are strict legal requirements to adhere to when varying the terms of a BFA.
Document the Process
Keeping a record of the negotiation and drafting process, including the advice given by legal professionals and the rationale behind decisions, can be important. This documentation can provide clarity and support the validity of the BFA if its contents are ever questioned.
Use Clear and Unambiguous Language
The wording of the BFA should be clear, concise, and free of legal ambiguities. Unclear language can lead to different interpretations, which might result in disputes. High quality legal drafting helps in ensuring the language used accurately reflects the intentions of both parties.
Family Lawyers For Binding Financial Agreements
BFAs are powerful tools. Their strength can lie in their drafting and the ongoing cooperation of the parties involved. Regular review and legal counsel can ensure that your BFA not only meets current legal standards but also reflects your changing life circumstances.
Whether you are considering if you need a binding financial agreement, need to review an existing one, or find yourself in a position where you may need to challenge or defend a BFA, seeking professional legal advice is advised. With expertise in family law and a deep understanding of BFAs, Daykin Family Law is equipped to provide you with the guidance and support you need. Shannon Daykin is a Queensland Law Society Accredited Family Law Specialist with a depth of experience in drafting and advising on BFAs, including in complex and high net wealth matters. Contact us today to ensure that your financial future is secured and managed according to the highest legal standards.
Navigating family disputes can be overwhelming, with emotions and legal complexities making the journey challenging. However, family law is not only about legal battles; it’s also about preserving relationships while addressing concerns and goals, and this is where collaborative practice can help.
Collaborative practice is a process of dealing with these complex issues in a way that focuses on co-operating towards a desired outcome. It really shines when it comes to family law, as it values empathy, understanding, and mutual respect over adversarial interactions.
What is Collaborative Practice?
Collaborative practice, also known as collaborative law, emphasises the importance of co-operative negotiations in family law matters, over traditional methods, that can be more adversarial.
With collaborative practice, separating couples and their lawyers engage in family-focused discussions, aiming for mutually acceptable settlements through transparent and confidential negotiations. They generally enter a binding agreement to avoid litigation, ensuring a commitment to constructive dialogue.
This approach is holistic in nature, and not only involves lawyers but also jointly retained neutral experts where necessary, promoting a comprehensive resolution that considers the well-being of the entire family, rather than focusing solely on individual rights or adversarial tactics.
It’s not just lawyers who sit at the table: therapists provide emotional support, financial planners give economic insights, forensic accountant experts can assist with complex valuation issues and child specialists offer perspectives centred on the well-being of the children, as some examples. This ensures that every facet of a family dispute, whether emotional, financial, or legal, is addressed with the depth and care it deserves.
One of the leading bodies promoting collaborative practice in Australia is the Queensland Association of Collaborative Practitioners, and Shannon Daykin, the Director at Daykin Family Law, is a proud member. So believe us when we say we believe in this approach!
With that out of the way, let’s look at the core values of collaborative law a bit closer.
The Core Values of Collaborative Law
When looking at collaborative law as defined by the Australian Institute of Family Studies, there are a few core values that can be identified.
Voluntary Disclosure
Both parties agree to openly share all relevant information, ensuring there’s no room for hidden agendas or surprises. This creates an atmosphere of trust, essential for constructive dialogue.
Solution-Based Approach
The focus remains squarely on finding solutions that work for everyone involved. Instead of a zero-sum game where one party’s gain is another’s loss, collaborative practice seeks outcomes where all parties can feel heard and validated.
Mutual Respect
Even in disagreements, collaborative practice prioritises respect. Recognising the intrinsic value of each individual’s perspective and feelings fosters a more constructive environment for resolution.
Engagement of Professionals
Depending on the complexity and nature of the dispute, other professionals such as financial advisors, child specialists, or counsellors might be engaged to provide a balanced solution.
Commitment to Avoid Litigation
Both parties, along with their respective lawyers, enter into a binding agreement that they’ll abstain from resorting to litigation while engaged in the collaborative process. This commitment ensures that every effort is channelled towards negotiation and consensus.
Through these central principles of understanding and cooperation, collaborative practice offers an alternative to the often aggressive dynamics of traditional legal proceedings.
Collaborative Practice in Family Law and Divorce
This co-operative practice is especially valuable in family law matters such as divorce and separation. A divorce, by nature, can be contentious and heavy with emotions. However, applying the principles of collaborative law to divorce proceedings promotes an environment where both parties strive for a collective solution.
Instead of courtrooms, decisions surrounding the divorce are made in collaborative meetings, ensuring both parties have a voice. There’s less confrontation, often leading to better, more sustainable outcomes. This approach ensures a fair resolution in terms of tangible assets and financial matters but also a careful navigation of emotional and psychological aspects associated with divorce.
Benefits of Collaborative Practice
Using collaborative practice to resolve disputes can significantly influence not just the immediate outcome, but also the long-term well-being of all involved. When dealing with disputes through Collaborative Practice, it offers a range of benefits that make it a compelling choice for many, such as:
Client Empowerment and Control
Unlike the unpredictable nature of court proceedings, Collaborative practice places the power squarely in the hands of the individuals involved. Clients are active participants, shaping the course of discussions and decisions. This empowerment instils a sense of ownership and commitment to the resolutions reached.
Positive Environment for Children
In family disputes, especially those involving children, the overarching goal is often to ensure their well-being and shield them from undue stress. Collaborative practice, with its emphasis on dialogue and understanding, ensures that children are spared the brunt of adversarial confrontations. Their needs and emotions are prioritised, ensuring a more nurturing environment amidst the upheaval.
Cost-Effective and Efficient
The prolonged nature of traditional litigation can be both time-consuming and financially draining. In contrast, collaborative practice, by sidestepping court battles, often results in quicker and more cost-effective resolutions. The collaborative approach emphasises direct communication, which can lead to swifter consensus and lower costs in the long run.
Preservation of Relationships
Family disputes, if handled combatively, can leave a lasting effect on relationships. Collaborative practice strives to prevent estrangements. By fostering mutual respect and understanding, it encourages parties to move past their differences, preserving familial ties. This becomes especially important in situations where ongoing interactions, such as co-parenting, are inevitable.
Fostering of Mutual Respect
By treating each perspective with dignity and value, collaborative practice allows for more harmonious interactions. Over time, this approach can help replace animosity with understanding, leading to more sustainable resolutions.
Collaborative Practice at Daykin Family Law
If you are going through a family dispute and are seeking a resolution-centric approach, Daykin Family Law is here to guide and support you. Our expertise in collaborative law ensures you’re not just represented but also understood, respected, and empowered. Contact us today for guidance on collaborative methods for any family law-related concerns, and whether this may be right for you and your family.
On October 11, 2023, the Queensland Government, under the leadership of the Palaszczuk administration, marked a significant milestone in the battle against domestic, family, and sexual violence by introducing landmark legislation that will make coercive control a criminal act in Queensland.
The bill, known as the Criminal Law (Coercive Control and Affirmative Consent) and Other Legislation Amendment Bill 2023, comes in the wake of recommendations from Queensland’s Women’s Safety and Justice Taskforce.
In a public statement, the QLD Government stated that the offence of coercive control in Queensland will carry a maximum sentence of 14 years in prison, and criminalises the actions of an adult under the following conditions:
- the person is in a domestic relationship with another person;
- the person engages in a course of conduct against the other person that consists of domestic violence occurring on more than one occasion;
- the person intends the course of conduct to coerce or control the other person; and
- the course of conduct would, in all the circumstances, be reasonably likely to cause the other person harm (with ‘harm’ defined in the Bill to mean any detrimental effect on the person’s physical, emotional, financial, psychological, or mental well-being, whether temporary or permanent).
At this stage, the new coercive control laws in QLD won’t come into effect until 2025, but this Bill still represents a significant step forward in addressing domestic violence in the state.
What is Coercive Control?
Coercive control is commonly understood as a form of domestic abuse where one individual consistently exercises power and dominance over another through behaviours that intimidate, threaten, or undermine the victim.
Instead of, or in addition to, physical violence, it involves a pattern of manipulative behaviours that may include emotional, psychological, financial, and digital control, aimed at making the victim reliant on the perpetrator and restricting their independence.
The intent often is to trap the victim in the relationship and deprive them of their agency and autonomy. This recent legislation has criminalised this behaviour, recognising its significant detrimental impact on the victim’s physical, emotional, financial, psychological, or mental well-being.
Find out more about the signs of coercive control and what to do when you spot them.
How Did This New Queensland Law Come About?
This law arises from the first report released by Queensland’s Women’s Safety and Justice Taskforce which is an independent, consultative taskforce created by the Queensland Government.
The report, known as Hear Her Voice – Report One – Addressing coercive control and domestic and family violence in Queensland, was first released in 2021 and features 89 recommendations to the Queensland Government on how to reform the domestic violence service and justice systems. These recommendations were devised after listening to more than 500 submissions from predominantly women and girls regarding their experiences with coercive control.
Hear Her Voice - Hearing Queensland’s Women Loud and Clear
The Hear Her Voice report brought to light the pressing issues that many victims face when seeking help. An overwhelming number of victims recounted unsatisfactory responses when reaching out to the police for assistance with domestic violence. This raised concerns about inconsistent and inadequate training for officers handling these sensitive cases. Many victims detailed being turned away, not being believed, or having their experiences minimised by the very people who were supposed to protect them – the police.
The report found that the disconnect and inconsistency in responses had led to a decline in trust in the Queensland Police Service (QPS) among many victims of domestic and family violence. The Taskforce acknowledged that while significant investments had been made in the QPS and officers and teams were doing commendable work, cultural issues persisted, preventing the effective handling of domestic violence cases.
To address these deeply ingrained issues, the Taskforce recommended the establishment of an independent commission of inquiry into the police. This commission’s report led to a $100 million investment into a variety of reforms and initiatives to provide enhanced support and protections to those caught up in domestic violence, among which was the introduction of new laws criminalising coercive control.
What Other Changes Can We Expect?
On top of the new legislation criminalising coercive control in Queensland, the QLD Government has stated there will be:
- Enhanced intervention and better victim support: Increased resources for services to manage and reform offenders and provide additional support for survivors to ensure their safety and recovery.
- New perpetrator diversion scheme: New strategies to hold perpetrators responsible via a court-driven program directing offenders to intervention sessions.
- New aiding violence offence: Charges for those indirectly enabling domestic violence will be established.
- Tougher penalties: New aggravating factors will be introduced to further penalise domestic violence offences.
On top of this Queensland’s Women’s Safety and Justice Taskforce released a second report in 2022 titled Hear Her Voice – Report Two – Women and girls’ experiences across the criminal justice system, which is split into two volumes: volume one and volume two.
Hear her voice – Report two
Hear her voice – Report two – Women and Girls’ Experiences across the Criminal Justice System delves deep into the challenges women and girls encounter within the criminal justice system, both as victims of sexual violence and in roles as accused individuals or offenders.
Report Two outlines a strategic plan for Queensland, aiming to improve our criminal justice system, ensuring those who interact with it – whether as victims, accused, or both – receive trauma-informed care. The Queensland Government stated that it is committed to considering all 188 recommendations from the Taskforce.
What Does This Mean for You?
With these extensive changes and commitments, Queensland residents can ideally anticipate a criminal justice system more attuned to the nuanced challenges faced by victims, ensuring a more compassionate, responsive, and robust framework against domestic and family violence.
The current legislative changes are just the beginning of a broader shift towards redefining how Queensland addresses domestic and family violence.
Reach Out Against Coercive Control
If you or someone you know is being subjected to a situation of coercive control, remember that you’re not alone and there are resources available to support you. Here are some steps you can take to deal with coercive control:
- Recognise the signs: The first step is to understand the signs of coercive control. This will empower you to seek the help you need.
- Reach out: Try and talk with trusted friends and family members, or your medical practitioner or counsellor, about the situation, whether it be your own or someone close to you. If you have no one close to you that you can talk to then reach out to one or more of the following resources.
- Available resources: There are numerous dedicated hotlines available to provide immediate assistance. Here are a few key contacts:
- Relationships Australia (Queensland branch): 1300 364 277
- 1800RESPECT: 1800 737 732
- DVConnect Womensline: 1800 811 811
- DVConnect Mensline: 1800 600 636
- Sexual Assault Helpline: 1800 010 120
- Kids Help Line: 1800 55 1800
- Lifeline: 13 11 14
- Prioritise safety: If you or your children are in immediate danger, call 000 immediately. Safety should always be the top priority.
- Seek legal advice: The intricacies of legal processes can be challenging to navigate. Professional legal advice can help you understand your rights and the options available to you. At Daykin Family Law, our expert team is ready to guide you through these challenging times. Contact us today to find out how we can help.
Please remember, that every person’s situation is different. What helps one person might not be right for another. You’re not in this on your own; there are those out there ready to lend a hand and support you through it.
In this article, we look at how assets are divided in a divorce in Australia.
Navigating the challenging path of divorce is difficult enough without the added worry of how assets will be divided, which can be a mystery for many. This crucial process, often marred by emotional turmoil and tension, is of immense importance as it can significantly impact the financial stability of each party involved.
In Australia, the law provides specific guidelines in essence on asset division in the event of divorce or de facto separation. It’s a fairly complex process, more complex than many think, steeped in legislation and legal intricacies, which mandates careful consideration of several factors.
This article aims to shed some light on these factors, helping you understand how assets are divided in a divorce in Australia, and provide you with the essential knowledge to navigate this path with clarity and confidence.
What are Assets in a Divorce?
Assets that you’ll need to consider when dividing assets in a divorce include (but are not limited to):
- The family home: Often the largest shared asset between partners.
- Vehicles: Cars and any other owned vehicles.
- Businesses/entities: Ran by one or both parties, or a business interest for example.
- Investment properties: Real estate properties acquired as a financial investment.
- Financial investments: This includes shares, stocks, mutual funds, and bonds.
- Family trusts: Established for various purposes such as tax planning or asset protection.
- Personal property: This can include items like jewellery and collectibles.
- Household items: Everyday items that may hold value.
- Savings: Monies accumulated over time.
Alongside assets, you also need to consider liabilities during divorce, for example:
- Personal or car loans: Any personal or motor vehicle loans taken out during the marriage.
- Business loans: Financial obligations tied to any business owned jointly or individually.
- Home mortgage: The outstanding debt on the family home or other properties.
- Credit card debt: Financial obligations from credit card usage during the marriage.
Superannuation and other financial resources also often need to be considered as part of the net assets available for distribution.
Now, let’s look at how to split these assets in a divorce.
How to Divide Assets in Divorce
There are a few common methods used to split assets during a divorce in Australia, including.
Common Methods Used to Split Assets
- Non-legal arrangement: This is often used in amicable divorces, where both parties mutually agree on the division of assets without the need for legal documentation. However, due to the lack of legal paperwork, it leaves room for potential disputes, as one party can later approach the court for financial orders as per the Family Law Act, for example. Due to this risk, it’s not commonly recommended by legal professionals.
- Binding financial agreement (BFA): A BFA is a legally binding document that can outline matters such as how the assets should be divided between the couple. It can be signed at any stage of the relationship – before, during, or at the end. A BFA stands unless there are exceptional circumstances that warrant it being set aside. It’s essential to engage a lawyer to draft and implement a BFA. It is a requirement that both parties have independent legal advice for a BFA to be binding and enforceable.
- Consent orders: Consent orders are a prevalent method used by couples finalising their financial affairs. Both parties agree on the division of assets and submit an application to the Federal Circuit and Family Court of Australia detailing their agreement. A Judicial Registrar reviews and approves these orders, making them legally binding.
- Litigation: This method is typically the last resort when former couples can’t agree on how to divide their assets. The Federal Circuit and Family Court of Australia (Division 1) and the Federal Circuit and Family Court of Australia (Division2) takes on the responsibility of deciding the division of assets, liabilities and financial resources in the event of dispute. The process can be lengthy (up to a year or more), costly, and requires regular Court attendance. It’s generally avoided unless absolutely necessary.
It’s important to remember that in the case of divorce in Australia, there is no fixed formula for asset division. It’s a misconception that assets are always divided equally; the actual division considers a variety of factors and is not a simple 50-50 split. The Court takes into account each party’s financial and non-financial contributions, the future needs of each party, and the justice and equity of the proposed division, for example. Understanding these issues can help individuals navigate the financial implications of divorce more effectively.
What to Consider When Dividing Your Assets In Divorce
In cases where negotiations fail and both parties cannot agree on property division, a Court-guided process is often necessary. It’s important to understand that divorce, which is the legal dissolution of a marriage, is a separate legal process from asset division and property settlement.
Property division can be finalised while the couple is still living together after separation or before the divorce is finalised. When the Court is involved, a five-step process is used to determine the division of assets. The substantive four steps are, briefly put:
- Valuing the assets: The initial step involves identifying and placing a value on the former couple’s assets, liabilities, and financial resources. This includes assets acquired before, during, and after the marriage. Assets can range from business interests, investments, vehicles, savings, and real estate, to even lottery winnings. Both parties’ superannuation benefits are also included in the asset pool.
- Analysing contributions: The court then evaluates the financial and non-financial contributions of both parties initially, during the relationship, and after separation.
- Assessing future needs: The future needs of both parties are considered next. This involves evaluating factors such as age, health, income, earning capacity, as well as care of children of the relationship under the age of 18 years, as some examples. The Court determines if any adjustments need to be made to the contribution-based entitlement on the future needs of each party.
- The practical effect: The final step involves the Court considering the practical impact of the property settlement on both parties to ensure that the outcome is just and equitable.
Now, let’s look at a specific example of how assets are divided in a divorce in Australia.
Example of Asset Division in an Australian Divorce
Jack and Lily are a married couple who have decided to separate. They have been married for 12 years, during which time they both worked full-time and had roughly the same annual income. They have two children, aged 6 and 9, who will be primarily living with Lily post-separation.
Their assets include:
A family home valued at $1.3 million
Savings amounting to $80,000
Two cars worth a combined value of $50,000
Superannuation: Jack’s superannuation is $200,000 and Lily’s is $180,000
Their liabilities include:
Remaining mortgage on the family home of $500,000
Car loan of $20,000
Credit card debt of $10,000
By totalling all the assets and subtracting the liabilities, we determine the net asset pool:
Total assets: $1.3m (home) + $80,000 (savings) + $50,000 (cars) + $200,000 (Jack’s super) + $180,000 (Lily’s super) = $1,810,000
Total liabilities: $500,000 (mortgage) + $20,000 (car loan) + $10,000 (credit card debt) = $530,000
So, the total net asset pool is $1,280,000 ($1,810,000 – $530,000).
Jack and Lily made equal financial contributions, but Lily took on the role as primary carer for the children in addition. Lily may, in that scenario, receive a higher percentage in her favour on the contributions step.
Lily will continue to be the children’s primary carer, so Lily may also receive an uplift on the future needs factors.
For example, let’s assume the court decides on a 60%/40% division in Lily’s favour. Lily would then receive $768,000 (60% of $1,280,000), and Jack would receive $512,000 (40% of $1,280,000).
Please note that this is a simplified example and actual asset division can be complex, depending on a multitude of factors. It’s crucial to consult with professional legal counsel, such as the team at Daykin Family Law, for guidance tailored to your specific circumstances.
Contact Daykin Family Law if You Need Help Diving Your Assets in Australia
If you’re facing a divorce in Brisbane or Wider Queensland and want more information on how assets are divided in a divorce in Australia, don’t hesitate to contact our team at Daykin Family Law. We’re dedicated to providing you with pragmatic advice to solve your issues efficiently and help you move towards the next chapter of your life.
Understanding your obligation to pay or right to receive spousal support
It is not uncommon for couples to mutually support each other financially over the course of a de facto relationship or marriage. What you may not realise is that ex-partners may also be entitled to ongoing spousal support, with others obligated to give such support. Read on to discover the basics of spousal maintenance, how you calculate payments, and how it differs from other family law financial agreements.
Spousal maintenance, spousal support and alimony payments (as they call it in the USA)
Spousal maintenance is a payment given from one spouse to another as a means of providing financial support. It may be a periodic or a lump sum payment, as some examples. Spousal maintenance (for married parties) or maintenance (for former de facto couples) is usually paid due to a range of factors, such as care of children of the relationship under 18 years, an illness or other health condition, or other relevant factors.
This support can be ordered by the Court if it is not agreed, with varying lengths of time for such payments to be made in the case of periodic spousal maintenance/maintenance.
Spousal maintenance can often be confused with alimony, an American term not used within the Australian legal jurisdiction. However, this is essentially equivalent to spousal maintenance, maintenance, or spousal support, as some call it.
Calculating spousal maintenance
While there are many services online that will claim to calculate how much you may be entitled to, in truth, there are a number of factors involved making it difficult for any online service to be able to come to an accurate conclusion.
However, the starting point is looking at a party’s need. This can be done in reference to a party’s income less their reasonable living expenses. The second step then is to assess the other party’s capacity to pay spousal maintenance, taking into account their income and reasonable living expenses among other things, and ascertaining whether there is a surplus.
Applying for spousal maintenance
A party seeking to receive an order for spousal maintenance must apply within 12 months of a divorce order taking effect, or within 24 months of the end of a de facto relationship. Applications can be made to the Court outside of these time limits, but it can be a costly process seeking the Court’s permission to proceed out of time, and success is not guaranteed.
Spousal maintenance is not an automatic part of the separation or divorce process. If an agreement cannot be reached, the party that is requesting assistance must submit an application and then establish that they have a need for spousal maintenance.
Some of the factors that are considered by the courts, briefly referred to earlier, are:
- The care of children under the age of 18 years – the parent/caregiver may be entitled to additional support for the spouse themselves
- Any existing financial support agreement between parties which extends beyond the relationship’s termination
- Age and health – if one party is significantly older than the other or has a medical condition
- A party’s inability to obtain employment and/or access to reasonable living standards
- A party’s access to other financial support, such as the pension or other government benefits
- The income, additional property, and financial resources of the two parties – is one party significantly advantaged over the other?
- The factors relevant to the relationship
While there is no limit to what the courts may consider in terms of a spousal maintenance application, Australia is a ‘no-fault’ jurisdiction. As such, the Courts will not factor in who ended the relationship and why.
The Court’s involvement
A Court can make orders that a party must pay spousal maintenance to the other party, with the Court most frequently ordering periodic or lump sum payments. Spousal maintenance orders can also include the transfer of property.
On a successful application, the Court will also stipulate any relevant terms and conditions, including how long the payments will last, particularly when made as part of final orders.
Other forms of support/payments
Spousal maintenance is different and separate from other forms of financial support or agreements, such as child support or property settlement. Child support payments are made in support of the child/children. Property settlement payments can be made as part of dividing assets as part of an overall property settlement following the breakdown of a marriage or de facto relationship.
Daykin Family Law can guide you through the process of applying for or contesting an application for spousal maintenance. Contact us today for an overview of your options and how we can help you reach a positive solution.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3338 5645 to make an appointment for a fixed fee initial consultation today.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
We are regularly contacted by people asking for advice on the preparation of a pre-nuptial agreement or a ‘pre-nup’, as we’ve covered in our previous article here. In Australia, pre-nups are actually referred to as Binding Financial Agreements and we often help clients in this area, whether they’re getting married or entering a de-facto relationship, or already married or in a de-facto relationship. We’re regularly asked a series of common questions, so we demystify each one of those questions in this article to help you make an informed decision on what might be appropriate for you and your relationship if you’re considering a pre-nup.
1. What is a pre-nup?
A pre-nup, or Binding Financial Agreement (BFA) as it is referred to in Australia, allows couples to enter into a legal agreement about their financial affairs in the event of a separation. This applies to married couples (post-nuptial), those who plan to wed (pre-nuptial) and parties in a de-facto relationship.
Binding Financial Agreements were introduced to provide a mechanism for couples who are either contemplating marriage, or are already married, to organise their affairs, including what could happen to property, businesses or how they would be looked after financially following a separation.
2. Are pre-nups (Binding Financial Agreements) legally enforceable?
The Family Law Act 1975 (Cth) allows couples to enter into a Binding Financial Agreement before marriage or cohabitation, during marriage or cohabitation, and after a relationship breakdown. Each party must enter into the Binding Financial Agreement willingly and effectively must be fully informed of the advantages and disadvantages of entering into the agreement, their rights etc. Each party must receive independent legal advice about the Binding Financial Agreement.
To ensure any pre-nup is less open to challenge later on, the parties should ensure that any contemplation of a Binding Financial Agreement is done in ample time to prepare the document and negotiate the terms before any wedding, and ensure there is no duress or undue pressure on either party. Both parties need time to fully consider, negotiate and obtain independent advice on the Agreement.
3. What are the benefits of having an agreement in place?
A significant benefit of a BFA is that it can provide clarity and certainty to both parties in a relationship and can extend to their families too. By setting out agreed-upon rules prior to any potential dispute, it may be more likely that the agreement will be considered by all parties to be fair and reasonable.
A BFA can seek to protect pre-existing assets from claims by the other party, which is important when one party is in a superior financial position to the other. Often one party has accumulated assets prior to the relationship without contribution from the other party and therefore wish to ensure those assets remain theirs upon separation.
4. What are the cons and pitfalls?
The Family Law Act gives the Court power to set aside a BFA in a number of circumstances.
Such circumstances include:
- where it was obtained by fraud or duress;
- a party failed to disclose relevant matters;
- where the objective of the agreement was to defeat the interests of other parties;
- where circumstances have arisen which make it impracticable for the agreement to be carried out;
- since making the agreement, a material change in circumstances has occurred relating to the care and welfare of a child and, as a result of the change, the child or a party to the agreement will suffer hardship if the court does not set the agreement aside;
- Any provision in a financial agreement that seeks to exclude or limit maintenance payments can be ineffective if at the time of the agreement coming into effect the proposed recipient is unable to support himself or herself without resort to an income tested pension benefit or allowance.
If a financial agreement is set aside, the Court can make orders for property settlement and maintenance in accordance with the principles set out in the Family Law Act.
5. What would the agreement contain?
The agreements are tailored to individual circumstances; no one agreement is the same as another. The agreement can deal with the division of both property (assets, liabilities, superannuation and financial resources) and spousal maintenance, or some agreements deal only with property division and leave spousal maintenance to be dealt with at a later time with no agreement prior to a separation.
The agreement may set out how assets are to be held and managed during the marriage, for example, whether a joint account will be opened and how property is to be held.
6. Do lawyers need to be involved?
Put simply, yes! For a BFA to be in fact “binding” under the Family Law Act, it requires, among other things, a lawyer to certify that they have given advice to their client with respect to:
- The effect of the Agreement on that person’s rights; and
- The advantages and disadvantages, at the time the advice was provided, of that person making the Agreement.
Without this advice, the Agreement may not be binding and enforceable even if it is duly signed by all parties involved.
7. How do I terminate an existing Binding Financial Agreement?
A Binding Financial Agreement can be “terminated” in one of two ways:
- the parties can enter into another financial agreement, provided that a specific provision is included in the new agreement stating that the former agreement is terminated; or
- the parties can enter into a “termination agreement” pursuant to section 90J (for married couples) or section 90UL (for de facto couples) of the Family Law Act. As with the original BFA, for a termination agreement to be binding and enforceable, it must be signed by all parties to the agreement, and each of the parties must have received independent legal advice with respect to the termination agreement.
8. What is the cost of an agreement?
Costs depend on the complexity of the financial arrangements and the length of the negotiations. However, the existence of a fair and negotiated agreement can mean legal costs are significantly lower in the long run than if there are subsequent divorce proceedings.
If you, or someone you know, is entering a relationship or marriage and could benefit from a discussion about whether a Binding Financial Agreement is right for them, please contact us for an appointment at our office in Fortitude Valley, Brisbane.
The blog published by Daykin Family Law is intended as general information only and is not legal advice on any subject matter. By viewing the blog posts, the reader understands there is no solicitor-client relationship between the reader and the blog publisher. The blog should not be used as a substitute for legal advice from a legal practitioner, and readers are urged to consult Daykin Family Law on any legal queries concerning a specific situation.
At Daykin Family Law, we are often contacted by couples asking for advice on the preparation of a prenuptial agreement or ‘prenup’. Prenup is a popular terminology, but actually refers to agreements taken prior to marriage in the USA and other countries. The equivalent of a prenup in Australia is known as a Binding Financial Agreement.
What is a Prenuptial Agreement?
A prenup, or Binding Financial Agreement as it is referred to in Australia, allows married couples (post-nuptial), soon to be married couples (pre-nuptial) and parties in a defacto or same sex relationship, to enter into a legal agreement about their financial affairs in the case of a relationship breakdown.
Binding Financial Agreements were introduced in Australia in 2000 to provide a mechanism for couples who are either contemplating marriage, or are already married to organise their affairs, including what could happen to property, business or how they would be looked after financially following a separation.
Should I get a prenup?
Prenups, or Binding Financial Agreements, are designed to remove uncertainty and avoid the stress of going to court. When done correctly, they can be a very useful tool for financial planning. It is, however, very important to take your time, and use an experienced lawyer to demonstrate that each party has had the opportunity to negotiate and reach a fair decision on the agreement. Agreements done in haste have been known to be challenged by the court.
In a recent case known as Thorne v Kennedy, the High Court overturned a prenup between a young woman and her property developer husband after she was made to sign the agreement the night before her wedding. The judges ruled that the document was effectively signed under duress. Therefore, it’s important that a pre-nuptial agreement is agreed upon by both parties over an adequate period of time. Other circumstances where the court can overturn an agreement is where the agreement would put unnecessary hardship on the spouse, especially where there are children involved.
In sum, pre-nuptial agreements have many benefits when entered into with the right legal advice from a family lawyer. They can protect your property and estate plan, reduce conflicts, clarify special agreements and establish ground rules for future matters. If you’re considering a BFA and would like some advice on whether it’s right for you, contact us today.
When separation occurs, it can be difficult to know what you need and who to speak to. Let us explain what a binding financial agreement is and when it might be appropriate.
What is a binding financial agreement?
What are my options for recording a property settlement?
When a couple separates, and they agree about the division of their property interests, there are usually two options available to them to enter into a property settlement and finalise their financial relationship with one another. For a binding and enforceable property settlement agreement, they can either:
- Enter into a binding financial agreement; or
- Apply for consent orders and file the proposed orders with the court for the court’s consideration and approval.
There are advantages and disadvantages to each of the above options, so you should seek legal advice as to the option which will be most suitable for your circumstances.
A binding financial agreement is a document that records an agreement as to the division of a married or de facto couple’s respective property interests. A binding financial agreement can address how the property and financial resources of a couple are dealt with, as well as spousal maintenance.
A binding financial agreement can be completed either before a relationship has commenced, during a relationship or after a relationship has broken down. For the purposes of this blog, we will focus on binding financial agreements completed after a relationship has ended.
Should I choose a binding financial agreement?
A binding financial agreement may be more suitable in circumstances where, for example, the parties wish for their agreement to be recorded and kept strictly private and confidential between the parties and their solicitors. Another example is where the agreement may not be seen in the eyes of the court as being a just and equitable distribution of the net assets. A private agreement such as this done correctly will effectively oust the jurisdiction of the court to make property adjustment orders.
Binding financial agreements are completed without any supervision by the court system. Therefore, you have more control over when the agreement comes into effect and are not subject to the court’s final approval of the terms of settlement.
Binding financial agreements will not be suitable for all cases though. Also, they can often be more expensive than obtaining consent orders, because your lawyer will be required to take your instructions, draft detailed documents with precision to ensure it is binding and provide comprehensive written legal advice to you regarding your rights and other matters in relation to the document.
What are the requirements of a binding financial agreement?
There are strict requirements set out in the Family Law Act 1975 (Cth) (FLA) which must be adhered to for a financial agreement to be binding. Some of the requirements include, but are not limited to:
- It must be in writing;
- It must be signed by all parties to the agreement; and
- Both parties must have received independent legal advice including on the effect of the agreement on their rights before the binding financial agreement is signed.
Binding financial agreements can be set aside by the court where the requirements have not been met, or where other circumstances are present such as fraud, non-disclosure etc. Whether a financial agreement is binding on the parties would ultimately be a decision for the court to make if it were ever challenged, so it is important to engage the right lawyer who can draft the agreement correctly and provide you with sound legal advice.
Cutting corners
You will almost certainly be able to find a “cheap and quick” binding financial agreement after a search on Google. But beware, the risks of entering into a binding financial agreement that does not satisfy legislative requirements can be significant.
It could end up costing you much more in the long run to cut corners on recording a settlement. This could be to either rectify a deficient agreement, or respond to a court application seeking property adjustment orders. This is even after you thought you had finished and settled.
Seek expert advice to ensure you are protected.
Speaking to a professional
If you have separated from your partner (or are considering it) and would like advice on your options regarding property settlement, contact Daykin Family Law today to book an initial consultation with our Director, an Accredited Family Law Specialist, at a reduced fixed fee.
Daykin Family Law has extensive experience drafting and advising on binding financial agreements and can assist with finalising your property settlement sooner so you can move forward with certainty. We can meet with you in our offices conveniently located in Fortitude Valley close to the CBD, or by phone or Skype.
