5. Arrangements in Respect to Property Settlement After Separation
Following separation, there will often be issues to work out between the separated persons concerning property settlement.
Property, for the purposes of the Family Law Act, includes things such as the family home, any investment properties, shares, cars, furnishings and superannuation.
For couples who were not married, please refer to our Fact Sheet entitled “De Facto Property Settlement”.
For couples who were married, there are essentially three options available to you to effect a property settlement:
These types of agreements are reached between two parties without being finalised legally. Often this approach is taken because there may be a chance of reconciliation and the arrangements are intended to be only temporary, or in some cases the parties simply do not wish to pay legal fees to obtain a formal agreement
It is important that before there is any division of property you speak to your solicitor first, as they may be implications in the future if the agreement is not formalised and you do not divorce. Any informal agreements made between two parties are often referred to as “around the kitchen table”. Except in cases where there are little or no assets, we do not recommend this course of action, but certainly speak to us before any division occurs.
By Formal Agreement
Where parties are able to reach an agreement in respect to property settlement there are then two options available to make the agreement legally binding.
The first is by way of Consent Orders. This is essentially a document that is drafted by a solicitor and filed with the Court. Both parties sign the agreement and then send it into the Court for filing. The registrar approves the Orders and seals them, and then sends the Orders to the parties by mail. In cases where Consent Orders are approved by the Court, Orders are made without the need for either party to actually attend at Court.
In our practice, this is by far the largest amount of work we undertake in this area and we charge an all inclusive lump sum fee to assist parties to work out the ongoing costs in their matter. Please see the fee section of this website for more details.
Binding Financial Agreements
In cases where an agreement is reached, a solicitor can draft an agreement, similar to other types of contracts, that sets out the agreement. Each party signs this in the presence of a solicitor, after obtaining legal advice. Once the document is exchanged between the parties it is legally binding.
Please ask your solicitor if you have any queries about this method of property agreements.
By Order of the Court
In some cases, parties are unable to reach an agreement concerning property settlement, or an element of urgency arises, and a Court application is then required.
In cases where there is no urgency, the Court encourages the parties and their solicitors to attend a mediation, called a conciliation conference, which is conducted at the Court by a Registrar.
We find that this type of conference is very effective in reaching an agreement. If an agreement is reached and Orders are drafted and signed, the Registrar then has the power to make the Orders by consent on the same day as the conference. This avoids the need for further court attendances.