While the purpose of dividing your assets, post-separation, with a legally-binding agreement is always the same, there are a few different ways to go through the property settlement process in Australia. Based on your situation, you might want to take a certain approach that will minimise the time, costs and hassles for you and your ex-spouse. Here are three common routes to settlement that people will take.
1. A Court Ordered Property Settlement
Like most legal disputes, settling the division of your assets in court is not the most ideal option but sometimes it can be necessary. If you and your ex-partner cannot come to a mutual agreement, you can apply to have a court make an order on your behalf. This involves planning, preparing and submitting the required paperwork and paying the court a listing fee.
- Initiating application – Information about the parties involved, the requested court order and property settlement distribution you seek.
- Financial statement – Details all your income, assets (superannuation inc.) and liabilities.
- Affidavit – Explains why the Court should make the requested orders on your behalf.
- Superannuation Request Form and Declaration – Only if you are seeking a splitting/ flagging order or need further information.
It is important that you maintain accuracy in all your paperwork. A reliable, specialist lawyer is able to help you with these arrangements.
2. Consent Order
If you and your ex-partner are generally on the same page about your property and asset management or simply don’t require a lengthy negotiation period, then you can save time by applying for a consent order. A consent order is filed with the Family Court but does not require the parties to actually be present in court. In most cases (not all), a consent order will be the quicker and less costly option but this depends entirely on your case and circumstances.
You can apply for a consent order for financial matters following divorce such as:
- The sale, transfer and maintenance of your property
- Spousal (or de facto) and child maintenance
- Splitting superannuation
3. Binding Financial Agreement
This is another common way to settle without physically going to court. As they share a number of similarities and also cover property, superannuation and spousal maintenance; binding financial agreements are commonly compared with consent orders.
A binding financial agreement is not filed to the courts, instead it is made in adherence to strict legislative terms in order to be binding. It is also a requirement that both parties seek independent legal advice for the Agreement to be enforced.
You give up your rights to having your spousal maintenance and property settlement entitlements determined by a Court, so this agreement is an efficient way to safeguard against financial liabilities of spousal maintenance in future and to resolve your financial/property affairs without going to Court. These agreements can only be nullified such as on a technical deficiency or where one party withholds information. If these have not happened it can be much more difficult to dispute in future.
At Pentana Stanton Lawyers, we specialise in Divorce Law and Property Settlement Law. Our reliable experts can help you prepare your binding financial agreement properly. Learn more information about your rights and your options regarding property settlement in Australia and contact the legal experts at Pentana Stanton today.