Agreement Without Court

Division of Assets and Debts

Nobody wants to go to Court. It’s expensive, stressful and can take a long time.

A legally binding agreement can be obtained without going to Court.

This is possible with what is called Consent Orders or a Binding Financial Agreement.

Steps to Agreement - Division of Assets & Debts

While Gordon Lawyers adapt to the needs of each case, for a property settlment there are standard steps to reach an agreement.

Property Settlement - is what lawyers call the division of a former couple's assets and debts. It includes all assets not just real estate.

STEP 1

Information and Document Sharing

Information & Documents

Each spouse provides information and documents about their income, assets, debts and resources.

It makes sense that each person needs to know what there is, to work out how it is to be divided.

STEP 2

Valuations

It is important to know what the main assets are worth. It is often the most important issue impacting what each person receives.

Valuations need to be obtained correctly, to avoid additional complications.

STEP 3

Assessment - What is a fair outcome

Assessment

When the needed information is to hand, the appropriate settlement can be worked out.

There are two main factors:

Contributions, of all types
&
Future Needs and Resources

STEP 4

Negotiations & Agreement

The Agreement

Negotiations usually follow.

When an agreement is reached, it is written up in the documents needed for legally binding consent orders.

No one needs to go to Court.

Risks without a Legal Agreement

Without a legally binding agreement there are significant risks.

Risk of a Claim

A claim can still be made in the future. If it is, it will include all of the assets you both have at the time, not just what you both had at separation. This includes super, inheritances, debt increases, everything. A spousal maintenance claim could be made.

Protect against a change of mind

Without Consent Orders the ex-spouse can change their mind. A party may not get what they are expecting.

Loss of Entitlements

Without a legally binding agreement, significant family law entitlements may be lost. There are time limits. Also, if either spouse dies then all Family Law rights are lost.

Role of a Solicitor

A solicitor normally carries out each of the steps needed, in consultation with their client.

A common question is “Where do I stand?”. The Family Law doesn’t not work the way many think it does.

Once an Agreement has been reached, one of the most important tasks is drafting the agreement. If not done correctly it can cause more problems than it fixes.

Frequently Asked Questions (PROPERTY SETTLEMENT)

{slider We have written down and signed what we agree to, is that enough?|closed|blue|icon}

No. If the agreement is not properly approved by the Court it is not a legally binding agreement. A claim is still possible.

{slider We have already split our stuff…do I need to do anymore? |blue|icon}

Yes. Get a binding agreement that says what you have done. If there is not a binding agreement a claim can still be made against “your stuff”, even if it’s many years later and/or all in your name.

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No. It’s important that the legal advice be independent. If the advice is not independent it is probable that the orders could be set aside (or be invalid) later on.

{slider Do we have to use a lawyer? |blue|icon}

It is not compulsory to use a solicitor.

But an experienced solicitor can provide the advice and guidance needed.

{slider Do I need to wait for a Divorce? |blue|icon}

No. Divorce is a separate issue.

{slider But I’m not married|blue|icon}

The same rules apply to married and de facto spouses (including same sex spouses). Except the time limits are different

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There are two documents needed to make a legally binding agreement…

Application for Consent Orders, and
Consent Orders

The Application for Consent Orders. Sets out details of the parties, children (if applicable) and financial details (if applicable).

The Consent Orders formally sets out the agreement.

For agreements regarding children a Notice of Risk is also needed.

{slider What can be covered in Consent Orders|blue|icon}

Consent Orders can include;

Property Division (ie who gets what)
Parenting arrangements (once called custody)
Spouse Maintenance (with limits)

What cannot be covered with Consent Orders;

Child Support (a different type of agreement is possible).
Divorce (separate procedure)

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With Consent Orders there is no stamp duty on asset transfers (e.g. changing home ownership to one person). There can also be other tax benefits.

This can be a saving of many thousands of dollars and usually saves much more than the legal costs involved in making the agreement.

{slider What happens when the agreement is sent to the Court for approval?|blue|icon}

The Court only has 2 options. It can approve or not approve the agreement. It cannot change the agreement reached.

A Court may not approve the agreement if the documents were not prepared correctly or the agreement is very unfair.

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