Blog post by Tom Cuthbertson
It is always vastly more efficient to resolve your relationship breakdown, children’s and property issues without the time and expense of litigation. It is however important to ensure that the protection and stability provided by any negotiated agreement is legally binding.
Circumstances, and personal feelings, change over time so while one party to a relationship may initially promise to allow access to any children or to financially look after the other, it is unfortunately the case that written, verbal or ‘handshake’ arrangements can be easily terminated by one party and are unenforceable in the absence of an appropriate legal instrument such as a Binding Financial Agreement or Consent Order.
Should I Get Legal Advice?
Formalising the agreement that you have reached through a Binding Financial Agreement or Consent Order creates legal obligations in respect of the promises each party makes. The former is a private contractual arrangement whereas the latter has the same effect as a legally binding order made by the Federal Circuit Court or Family Court. There are a number of key differences, advantages and disadvantages, to using a Binding Financial Agreement or Consent Order so it is important that you seek legal advice as to which legal instrument is appropriate to formalise agreement in your circumstances.
Consent Orders enjoy some significant taxation benefits, allowing you to sort out children’s and property issues as well as any spousal maintenance in one document; these can be designed to ensure that both parties can have piece of mind in a short, cost-effective timeframe. A Consent Order is filed in the Court by agreement between the parties, and if the proposed settlement is viewed as just and equitable or ‘fair’ by the Court, then the Court will make orders in terms of the filed Consent Order – there is no need to attend a Court hearing.
Binding Financial Agreements
Binding Financial Agreements can be utilised either in conjunction with or instead of Consent Orders and are sometimes more appropriate where financial or property issues are particularly complex. Effectively, they oust the jurisdiction of the Family Court where the agreed arrangements are more creative and might not be accepted by the Court in the form of a Consent Order.
In many cases, Binding Financial Agreements are entered into by parties before commencing a relationship or during a relationship indicating how they would divide property in the event of relationship breakdown. While some may find this difficult or awkward, it is well worth it for the security they afford each party. Click here for more information on Binding Financial Agreements.
To discuss how a Binding Financial Agreement or Consent Order can be financially advantageous to you or to discuss creative, cost-effective solutions to your children’s or property issues, contact Tom Cuthbertson at Culshaw Miller Divorce & Family Lawyers. Tom can also be reached on (08) 8312 4527 or 0400 219 889.