In this video, OMB Solicitors Partner and Accredited Specialist in Family Law Abbi Golightly talks about the next steps to take after reaching an agreement in relation to the division of your assets after the end of your relationship.
Hi, I’m Abbi Golightly, partner at OMB Solicitors and an accredited specialist in family law. So you’ve reached an agreement in relation to the division of your assets after the end of your relationship. The next question you may ask is how you document that agreement.
When it comes to documenting your agreement as to the division of your assets, there are two options available to you, there is a binding financial agreement and a consent order. Each of the options have pros and cons and advantages and disadvantages to you.
In relation to consent orders, you complete and file an application for consent orders with the family law courts. You attach to them the terms of the agreement reached between you and your former partner.
The application requires completion of a number of financial details for you and your former partner, such that the court has information as to your current financial circumstances. The court uses that information to make a decision as to whether the terms of the agreement reached are just inequitable or fair and reasonable.
If the court is satisfied that the terms are fair and reasonable, they will make the orders and they are binding upon you and your former partner as if they were an order made by a judge after a contested hearing. A binding financial agreement is a private agreement between the parties.
It sets out the terms of the agreement reached in relation to the division of your assets. You are required by the Family Law Act to obtain independent legal advice in terms of the binding financial agreement before you sign it.
That advice must be in relation to specific issues, which are the advantages and disadvantages to you of signing the agreement and the impact of the agreement upon your rights and entitlements. If you do not receive independent legal advice, then the binding financial agreement is not valid and enforceable.
The benefits of a binding financial agreement is that it enables you to be a little more creative with the terms of the agreement reached and enable you, for example, to take a longer period of time to pay your former partner a cash entitlement before a transfer of a property or be creative with respect to superannuation splitting.
A binding financial agreement is not approved by the family law courts, and that is why it is mandatory to obtain independent legal advice. If you are unsure as to which option is best for your circumstances in relation to formalising your property settlement, contact us here at OMB Solicitors.