Following separation, in circumstances where a financial agreement has not previously been entered into, you and your former partner may be required to finalise your financial matters by way of a property settlement or application to the Court.
The financial matters that will ordinarily require a party’s consideration following the breakdown of a relationship are as follows:
- the division of any assets, liabilities or financial resources of the parties;
- the splitting of superannuation; or
- the payment of spousal or de facto maintenance.
Our team of experienced Family Lawyers at Marino Law can assist you to in finalising any financial matters that may arise from the breakdown of your relationship.
Property Settlement Agreements
Agreeing to settle any outstanding financial matters arising from the breakdown of a relationship amicably by way of a mutual property settlement can offer many advantages, including:
- retaining the ability to make your own decisions;
- reducing the emotional and financial cost of litigation;
- protecting any co-parenting relationship and improving communication between the parties; and
- providing each party with the ability to move forward and start a new life.
It is important to formalise any agreement reached between you and your former partner in order for it to be legally binding. The two (2) options available for formalising a family law property settlement are as follows:
- application for consent order, annexing minutes of consent/draft order; or
- a binding financial agreement.
In determining whether the terms of proposed property settlement and/or agreement are right for you, it is advisable to receive independent legal advice as to the nature and effect of the terms of the proposed agreement and your rights, obligations and entitlements under the Family Law Act 1975 before entering an agreement.
At Marino Law, in order to establish whether the terms of an agreement reached between you and your former spouse are just and equitable we use the ‘four-step approach’ ordinarily used by the Court in determining the outcome of a family law property dispute. We also require each party to make full and frank disclosure of their assets, liabilities and financial resources.
Our team of experienced Family Lawyers at Marino Law can assist you to pursue a family law property settlement and provide advice on any agreement that may be reached.
Consent Orders
A Consent Order is an application filed with the Family Court containing an agreement between former parties to a relationship to determine any financial matters arising from the breakdown of their relationship on a final basis.
Once made, it has the same effect as an order made by a Judge at Court.
Consent Orders ordinarily deal with:
- the division of any assets, liabilities or financial resources of the parties;
- the splitting of superannuation; and/or
- the amount of the property to be retained by a party that is to be attributed to spousal or de facto maintenance.
Whilst there is no requirement to seek independent legal advice prior to entering to the consent order, each party should obtain advice about the effect of the proposed orders.
In financial matters, in order to obtain a consent order you are required to file an application for consent order, annexing minutes of consent (agreement) in the Family Court. You will not be required to appear at Court. A registrar will review the application, and if they consider the terms of the proposed order just and equitable, they will make the order thereafter returning a sealed copy to each party.
Due to the complexities involved in drafting clear and accurate orders that are acceptable to the Court, it is advisable to retain a solicitor to assist with the drafting of the requisite documents. Failure to do so may result in delay, or the making of inaccurate or unclear terms that may result in further dispute or litigation.
When a consent order is made, each person bound by the order must follow it. If you do not comply with the terms of a consent order, it may constitute a breach which can lead to enforcement proceedings.
Our team of experienced Family Lawyers at Marino Law can attend to the negotiation of terms, drafting and provision of advice in respect of any application for consent orders.
Enforcement of a Court Order
If a party to a court order does not comply with the terms of the order, the other party may apply to the Court seeking to enforce the order by way of one of the following enforcement processes:
- an enforcement hearing, seeking receivership, sequestration of property or other appropriate order/s;
- third party debt notice; or
- an enforcement warrant.
If you are considering applying to the court to enforce an order, or alternatively you are planning upon not complying with the terms of a court order, it is important to seek immediate legal advice.
The law surrounding enforcement proceedings is particularly complex and difficult to navigate. The experienced Family Lawyers at Marino Law have considerable experience in successfully litigating enforcement proceedings.
Setting aside a Court Order
Due to the ratification (supervisory role) of the Family Court at the time of making an order, without the agreement of a party, there is limited scope under the Family Law Act 1975 that enables a party to seek to have an order set aside.
The Court ordinarily requires there to have been, inter alia:
- a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance;
- in circumstances that have arisen since the order was made it is impracticable for the order to be carried out or impracticable for a part of the order to be carried out;
- a person has defaulted in carrying out an obligation imposed on the person by the order and, in the circumstances that have arisen as a result of that default, it is just and equitable to vary the order or to set the order aside and make another order in substitution for the order;
- in circumstances that have arisen since the making of the order, being circumstances of an exceptional nature relating to the care, welfare and development of a child of the marriage, the child or, where the applicant has caring responsibility for the child, the applicant, will suffer hardship if the court does not vary the order or set the order aside and make another order in substitution for the order; and
- a proceeds of crime order has been made covering property of the parties to the marriage or either of them, or a proceeds of crime order has been made against a party to the marriage.
Upon considering the facts of the case and determining whether any of the above requirements apply, the court may vary or set the order aside and/or make further financial orders in substitution for the order that had been set aside.
If you are considering applying to the court to set aside or vary an order, it is important to seek immediate legal advice.
The law surrounding such applications is particularly complex and difficult to navigate. The skilled and experienced Family Lawyers at Marino Law have considerable experience in successfully litigating an application to vary or set aside an order.
Marius Eden, Special Counsel is an Accredited Specialist in Family Law. Specialist Accreditation acknowledges an additional course of study and the achievement of a high level of practical skill and knowledge in the area of expertise.
