Property Settlement: Consent Orders or a Binding Financial Agreement

When a couple separates, most people prefer to avoid the inevitable conversation about property division. We understand the difficulty separation brings. If parties proceed to litigation, significant legal costs must be incurred.

Separation and property can be compared to the task of removing a band-aid. It hurts at first but the wound gradually mends, and similarly, the memory of separation and settlement, while always resembling a scar to be remembered, no longer causes pain.

During these uncertain times, if you're looking for the best lawyer in Sydney CBD, NSW, Jeffrey of JCL Legal is available by mobile phone. Please call him on 0419 233 670.

For others, separation may feel as if they are constantly reopening a wound that will not heal, with no end in sight. The good news is that property settlement does not have to be a long, torturous, or expensive process if parties can come to an agreement either with or without legal assistance. Most agreements arise out of compromise and coming to an agreement whilst not perfect, is one you can live with.

It is for this reason we have put together this article regarding the manner of finalising your agreement.

First, determine the property pool and reach an agreement

The first step is to determine your property pool. This is the sum of all the assets less the liabilities of the relationship. Initial contributions and legacies normally, after the passing of time, become absorbed into the property pool unless exempted by an earlier Binding Financial Agreement. Usually, at this stage, it may be an advantage to obtain legal advice then with that information proceed to mediation if an agreement cannot be reached.

Consent Orders or Binding Financial Agreement

Once an agreement has been reached, the Family Law Act 1975 provides for such agreements to be formalised by either a Binding Financial Agreement or by Consent Orders. Consent Orders need to be made by the Court and there is a requirement that in the circumstances that the Orders must be fair and reasonable. However the Act also allows parties to draft their own agreement which does not meet the fair and reasonable test, this can be undertaken by way of a Binding Financial Agreement. Both are legally enforceable. The Orders can be enforced by the Court and usually have a paragraph to allow the court to sign documents on behalf of a party in the absence of their breaching the orders whilst with a Binding Financial Agreement a new application must be made with the court.

We at JCL Legal have assisted many couples to finalise their property matter without litigation and we are available to discuss your matter at a convenient time.

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