Take advantage of our commercial and financial expertise in considering your financial separation options.
There are 3 options when undertaking financial separation as follows.
1. The BFA (Binding Financial Agreement)
Also known as a prenup or postnups. Some further interesting aspects of BFA’s are dealt with below and also on our step one page. These are usually the starting point for any agreement. They allow the parties to agree whatever they wish provided that each retain separate lawyers and make full disclosure. Many lawyers are uncomfortable with these but we have a unique approach because of our diverse financial and commercial expertise that goes beyond family law.
2. Consent Orders.
These are made by consent of the parties and an application in Court. As they are court orders, the court is restricted and must only make orders which are fair and reasonable and reflect what the parties would get if indeed there did go to court and have a dispute. In other words, you cannot just agree to whatever you like. You must go through the steps of contributions and future needs. Nonetheless, these are an alternative to option one. We commonly use these where parenting orders are also sought.
3. Court Action. No Agreement
We go to court and seek contested orders. Even where we may end up here at option three, our initial approach is to try and make a settlement offer in the form of a BFA or consent orders. This is known as a letter of offer. We cannot simply just go to court but must demonstrate that we have taken “genuine steps” to resolve the dispute. Where there is no agreement, or typically you have spouses that hide assets, our financial expertise is unparalleled in chasing and hunting down hidden assets or unreasonable spouses.
This is the final option and we always recommend to clients to try and resolve the matter before the court process ends. You will have plenty of opportunities to go to mediation but sometimes it takes going to court before the other party becomes reasonable.
The Process For Contested Orders When Parents Cannot Agree
Write to the other side
We write to the other side to invite them to resolve the dispute and we outline what our arguments are and what we are seeking.
Attend dispute resolution
We selected dispute resolution service and we attend that service – this will cost both parties legal fees and the fees for the dispute resolution service.
Written notice of issues and future intentions
If we reach agreement then we file for consent orders in the agreement is formalised. If dispute resolution is not attended or fails to reach a solution, and at this stage we write again of the notice of the intention to start a proceeding. We again list issues in dispute and the genuine offer to resolve this issue is and wait at least 14 days from the date of the letter.
Reply to the notice of intention
If you receive such a notice of intention then we must reply on your behalf within this time period
Lodge an application in court
Finally, after reasonable attempts to resolve the above by correspondence, we may file proceedings via an application in the Court.
Start your matter from $1200 plus GST (Parenting and Financial).
Financial separation explained in easy steps
Difference Between BFA & Going To Court?
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.
How Certain is a BFA ?
Many lawyers are reluctant to draft BFA and prefer to use consent orders for financial separation matters between couples that are in agreement.
This largely stems from a number of court decisions where BFA’s have been set aside or varied. It is important to note that the BFA is a technical document that must refer to certain sections of the Family Law Act; but more importantly the document must be drafted in a way to consider what may happen in the future between the parties.
It is not as simple as filling in the blanks. It is important to use experienced senior lawyers that understand financial and asset protection matters can advise you properly on a BFA.
Grant Hackett-Wife Sets Aside BFA
Hackett’s lawyers prepared a pre nup (BFA) rior to his marriage to Candice Alley.
The agreement was later amended during his wife’s pregnancy with their twins.
According to the newspaper article at the time
“Hackett sued the two law firms over the allegedly botched agreement, claiming their negligence caused him financial loss because it was found to be not binding.”
Both law firms denied negligence and earlier this year the case was settled privately between the parties.
Candice Alley claimed that that she did not receive the appropriate legal advice before signing the agreement; and the way in which the agreement may have been modified at a later date.
Grounds for Setting Aside a BFA?
Misrepresentation or fraud
To establish fraud can involve some failure to disclose something a court considers relevant to enter the BFA.
Misrepresentation; it must be shown that there was a false statement that effectively induced the other partner to enter into the BFA.
Change of Circumstances – Children?
Any circumstantial changes relating to the best interest of the child or children that the court regards as “material”, such as wellbeing, child development and health are paramount when the court considers setting aside a BFA.
For instance, when the BFA was entered into, the child may have originally lived with the mother, but later moved to live with the father. This might form grounds for the court to set aside the BFA.
If the child becomes disabled or sick requiring expensive medical treatment, the BFA may be set aside if it runs contrary to the interests of the child.
Fraud Against 3rd Parties Such as Creditors?
For example, if assets are transferred prior to a BFA prior to bankruptcy in circumstances the trustee in bankruptcy and/ or the family court may investigate and set aside the BFA.
Uncertainty and Incompleteness?
It would be unreasonable to enforce the agreement and so a court will have it set aside.
Improper Pressure, Duress and Stress?
Unwarranted pressure on the other partner to take part in a BFA. Violent threats, intimidation and bullying are common examples of undue influence and duress.
Splitting Orders and ‘Unsplittable Interests’?
It will not, however, be possible to split a superannuation account with very little money.
Other types of interest have been deemed unsplittable.
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
A “Certificate of Independent Legal Advice” is required to be prepared and signed to show that both of you have received independent legal advice.
Full Disclosure 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?
All of the parties current assets, liabilities and financial resources are considered. This will include both parties superannuation and pension entitlements.
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.
Any property held in one name;
Jointly owned assets;
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; or
Prospective entitlements i.e. inheritances, redundancy payments and long service leave may even be included in certain circumstances.
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FAQ's – Divorce & Separation
Can I Apply For A Divorce?
You can apply for a divorce in Australia if either you or your spouse: regard Australia as your home and intend to live in Australia indefinitely, or are an Australian citizen by birth, descent or by grant of Australian citizenship, or ordinarily live in Australia and have done so for 12 months immediately before filing for divorce.
Living Under The Same Roof Can Be Living 'Separately'
You need to satisfy the court that you and your spouse have lived separately and apart for at least 12 months, and there is no reasonable likelihood of resuming married life. It is possible to live together in the same home and still be separated.
Seeking Legal Advice and Our Fixed Fee Offer
You can obtain legal advice to understand your rights and responsibilities before applying for a divorce or other applications in relation to a divorce. A lawyer can help explain how the law applies to your case.
What A Court Considers In Divorce Applications
The only grounds for divorce is that the marriage has broken down irretrievably. That is, that there is no reasonable likelihood that you will get back together. You must have been separated for at least 12 months and one day in order to satisfy the Court that the marriage has broken down irretrievably.
If there are children aged under 18, a court can only grant a divorce if it is satisfied that proper arrangements have been made for them.
What Will A Divorce Cost And Our Fixed Fee Offer?
There is a filing fee for divorce applications and your lawyer will also charge a fee. Goldman lawyers has some fixed price offers for those seeking to have a clear transparent legal process and cost in our offers
In some cases; for example, if you hold certain Government concession cards or you are experiencing financial hardship, you may be eligible for a reduced fee.
Can I Oppose A Divorce Application?
If you have been separated for more than 12 months, there are few opportunities to oppose a divorce application. You can only oppose the divorce where:
There has not been 12 months separation as alleged in the application, or the court does not have jurisdiction.
If you do not want the divorce granted, you must complete and file a “Response to Divorce” and appear in person on the hearing date.
You need to set out the grounds on which you seek the dismissal in the “Response to Divorce”.
If you file a response, you should attend the divorce hearing. If you do not attend, the court may decide the divorce application in your absence. If it is difficult for you to attend in person, you may ask the court to appear by telephone.
of clients expect lawyers to be available outside of their office.
of clients expect lawyers to be available outside of business hours.