You have two options;
1. a "Consent Order" made by the Court; or
2. a "Binding Financial Agreement" ("BFA").
What is the difference?
- If you decide to use a BFA, both of you will need to get independent legal advice. You can get your lawyer to give you legal advice and draft up the BFA and your partner can have their lawyer review the BFA and provide them with legal advice.
- A BFA can only deal with financial or property matters whereas Consent Orders can deal with parenting matters as well.
Fair and reasonable?
- A court will only make orders on your Consent Orders if they think that what you have agreed on is fair and reasonable to both parties.
- A BFA may not necessarily be fair to both of you and it is possible that you or your partner may have a more advantageous settlement.
- A lawyer may also prepare a Letter of Advantage/Disadvantage when they review a BFA so that their client is aware of the effect of the BFA.
- If a BFA is prepared without this independent legal advice, the BFA is void and unenforceable.
- A Certificate of Independent Legal Advice is required to be prepared and signed to show that both of you have received independent legal advice.
Fulldisclosure a must
- In both cases the parties must disclose all assets, whether in their name or not, and liabilities. The documents may be overturned and contempt of Court penalties may apply if full disclosure is not made.
What assets are covered in a property settlement
- All of the parties current assets, liabilities and financial resources are considered. This will include both parties superannuation and pension entitlements.
- Any property held in one name;
- Jointly owned assets;
- Business interests;
- Shares or interests in a company;
- Family trusts as well as other trust interests;
- Funds or interests over which a party has either control or influence;
- Assets owned prior to the commencement of the relationship or accumulated during the relationship;
- Assets acquired post-separation;
- Prospective entitlements i.e. inheritances, redundancy payments and long service leave may even be included in certain circumstances.
Liabilities are also considered in the same way and they will include both parties, debts, credit cards, loans, tax and stamp duty obligations and that is irrespective of whether they are in joint names or the name of one party.