Property & Financial Settlements – Andrews Family Law https://andrewsfamilylawyers.com.au Sun, 07 Jul 2024 10:10:41 +0000 en-US hourly 1 https://wordpress.org/?v=6.6.1 https://andrewsfamilylawyers.com.au/wp-content/uploads/2023/11/favicon-blue.svg Property & Financial Settlements – Andrews Family Law https://andrewsfamilylawyers.com.au 32 32 3 Ways to Resolve Financial Settlements During Divorce (What’s the Best Method for You?) https://andrewsfamilylawyers.com.au/financial-settlements/ Sat, 06 Jul 2024 19:00:40 +0000 https://staging.raw.com.au/?p=1130

Separation or divorce can be a confusing and scary time in people’s lives. Especially when you have important financial settlements to resolve. You can experience emotions from anger, frustration, and anxiety to even euphoria when you’re finally closing a chapter. Imagine having to resolve a financial settlement while dealing with such complex emotions. Making the process as easy as possible means selecting the right settlement method.

The right approach depends on various factors. How complex is your financial situation? Do you have an amicable relationship with your former partner? What are your preferences?

We’ll explore how to handle a property settlement. We will discuss the advantages and disadvantages of each method to help you make an informed decision. You can then determine the right approach. This will protect your finances during divorce or separation.

Key takeaways

  • The three best ways to resolve a property settlement are mediation, negotiation and litigation.
  • Mediation involves a suitable third party facilitating a discussion between separated partners over how they will divide their property.
  • In negotiation, parties can discuss financial arrangements directly with legal representation.
  • As a last resort, parties can ask the Court to make a determination over property matters.
  • Binding financial agreements and consent orders are two ways separating partners can use to divide their property.
  • Consent orders are property settlements organised by the Family Court through a four-step process.
  • Binding financial agreements allow parties to form a legally enforceable agreement without the Court.
  • There are various factors to consider when deciding how to divide your property. These include the potential for compromise, your asset pool’s complexity and how any children will be affected. 

happy couple husband wife signing rental contract at meeting with realtor or landlord, first property purchase, mortgage and loan ownership concept.

The 3 Best Ways for Resolving a Property Settlement in Family Law

If you want to divide your financial resources after a divorce or separation, here are the three most common options.

Mediation

A voluntary process wherein a neutral third party (the mediator) assists separating couples in reaching mutually acceptable agreements on issues such as property division and spousal support.

Negotiation

This is an informal process where the parties, often with the support of independent legal advice, communicate directly to address their disputes and work towards a mutually beneficial settlement.

Litigation

Parties don’t always agree on a property division. In litigation, the Family Court makes a final decision on disputes. This is typically a last resort when other resolution methods have failed or are unsuitable. Understanding the critical aspects of mediation, negotiation, and litigation will enable you to make a well-informed choice when determining the most appropriate action for resolving property settlements.

As we go through these choices, we must remember that each family’s circumstances are unique. No single solution fits everyone. What may be effective for one family may not be appropriate for another. Seek advice from experienced professionals.

What is a financial settlement?

Before we delve into the three primary methods to divide property, let’s define what a financial settlement is. Whether you’re married or in a de facto relationship, your finances will get mingled with your partner as you make a life together. In the event of a relationship breakdown, you’ll need to make financial arrangements to separate your property.

A property settlement provides a legally enforceable way to divide an asset pool. This can be achieved through a financial agreement or the Court’s intervention. Property settlements take different forms.

Consent orders

When you apply for consent orders, you’re appealing to the Court to sign off on a settlement you’ve agreed to with your ex-partner. The Court applies a four-step process set down in the Family Law Act.

Step one

The Court will account for all the assets and liabilities under consideration and determine the proper value of the entire marital pool.

Step two

In the second step, the Court assesses the relative contributions of each party. Direct and indirect financial contributions are considered, but so are non-financial contributions. The Court will value factors like home maintenance and child-rearing.

Step three

After accounting for each party’s various contributions, the Court will consider each party’s future needs. This step recognises that many married couples have an imbalanced access to financial resources.

Step four

At this stage, the Court determines whether the division is just and equitable. If the Court doesn’t believe the settlement satisfies this requirement, it may make adjustments to the agreement or reject the application.

Binding financial agreement

Binding financial agreements (BFA) don’t include the Court. A BFA is a private agreement between parties. BFAs can be more flexible than a consent order as you can enter into them at any point. Consent orders can only be sought once a couple has separated. You can draft a BFA before a relationship begins, during the relationship or after separation.

BFAs also don’t need to cover an entire marital asset pool. You can seek a financial agreement to preserve particular assets like precious artwork and other unique items.

A valid BFA must meet certain criteria to be legally enforceable. Both parties need to receive independent legal advice. This advice should provide information on how the agreement affects the parties. The lawyers then provide an independent solicitor’s certificate. This certificate confirms that the parties received the necessary legal advice and makes the BFA enforceable.

A BFA’s flexibility can be useful. However, they can lead to imbalanced divisions. There’s no process to ensure fairness. Financial agreements can lead to one party losing out on their proper entitlement. A BFA can also be a particularly expensive option. The complexities involved in drafting them means that the process can be extensive.

A Collaborative Approach to dividing financial resources

Separated couples tend to find mediation very helpful. A neutral mediator facilitates discussions between parties. Mediation has many advantages, including:

Cost-effective

Mediation is generally more affordable than litigation. The price of a session depends on its length. A two-hour session will cost about $1000. A full day may be around $3000. You can keep these costs down by being prepared and forming an agreement quickly. It’s also easier to share the expense. Litigation can cost significantly more through hearing fees, filing fees and legal costs, and you’ll likely shoulder that expense by yourself.

Time-efficient

Mediation can be scheduled around everyone’s availability. It’s typically quicker than court proceedings. Well-prepared parties that want to find a resolution can settle the matter within a day. Litigation often goes for several days.

Confidential

Discussions during mediation remain confidential. Mediators are required by law to not divulge what’s said during a session. This means that your discussion isn’t admissible in court. You are free to be open and honest.

Mediation promotes collaboration. Separated couples can then maintain a more amicable relationship. This is particularly important when children are involved.

While it offers several benefits, it’s not always suitable. Some couples have a power imbalance that leaves one participant vulnerable to being coerced. A history of family violence also makes mediation inappropriate.

Direct Communication

Negotiation is also popular. Both parties engage in direct discussions to find a mutually beneficial agreement.

Legal representation provides support and advice throughout the negotiations. Benefits of negotiation include:

Flexibility

Negotiation allows both parties to express their preferences and priorities. This allows the participants to find arrangements that suit their circumstances. Without the need to satisfy the Court, you can explore creative solutions. This might include sharing assets like real estate or a vehicle on an agreed-upon schedule.

Informality

Negotiation doesn’t have to include a rigid structure like a court process. You can organise a more relaxed environment so you can discuss your concerns openly. This facilitates cooperation and makes it easier for you to reach an agreement.

Control

Both parties participate in the negotiations. This maintains control over the outcome. Most people find this preferable to allowing the Court to settle the matter.

Privacy

Negotiations are private. This maintains everyone’s confidentiality throughout the process.

However, not everyone would benefit. It’s inappropriate with a history of domestic violence or coercion or if one party won’t engage in constructive discussions.

Discover: What Is a Binding Financial Agreement?

Turning to the Court

Sometimes, other methods prove unsuccessful. Some parties also have particularly complex cases. Going to court is the final option once all attempts to negotiate fail. An experienced family lawyer is critical to getting the most out of the experience. Court proceedings can be tricky to navigate. A lawyer will use their expertise to ensure the best outcome.

In litigation, a judge decides on the allocation of assets. Some advantages of litigation include:

Enforceable outcomes 

Litigation is binding. Both parties must comply with the Court’s decision. Breaches incur sanctions like fines and adjustments to the settlement that penalise the offending party.

Impartiality

A judge decides based on evidence and legal principles. The outcome won’t be biased or emotional.

Clear procedures

A defined structure and procedural rules make litigation predictable and transparent.

Legal representation

Both parties can seek legal advice and representation from experienced family lawyers.

Litigation drains parties emotionally, resulting in strained relationships. The confrontation of court proceedings can create bitterness and resentment. This is why we always recommend you take all opportunities to cooperate with your ex-spouse.

We have a blog that explains how to divide assets fairly in family law. You can check it out.

Factors to Consider When Choosing a Resolution Method

When deciding on a dispute resolution method, consider the following:

Nature of the relationship

People going through a divorce experience complicated emotions. In the best case, the split is amicable and you can communicate on good terms. However, it isn’t unusual for couples to develop ill-will. This limits your ability to find solutions outside of court. Serious scenarios like family violence will also be a large factor.

Complexity of financial matters

Complex financial arrangements are often not easy to settle. Finding an acceptable division through mediation or negotiation can take a long time. Appealing to the Court for an order may be the best option. We sometimes hear from people that going the litigation route makes them a failure. This isn’t true. If you’ve made genuine attempts to cooperate, the Court can be a big help. The Family Law Act ensures both people are treated fairly. There’s no ambiguity around what the Court expects of the parties.

Willingness to compromise

Can you and your former partner find common ground? Finding compromises is important in mediation or negotiation.

Potential impacts on children

The resolution method can influence the future relationship between separated parents. This is crucial to consider for the well-being of their children. The Court wants co-parents to cooperate in caring for the children.

Casual Children Cheerful Cute Friends Kids Joy Concept

Conclusion

Resolving financial settlements is a critical component of separation or divorce. Finding the right resolution method is essential.

These three methods offer unique benefits and potential drawbacks. Understand your situation and needs to find the right choice.

Do you need assistance with family law matters? Contact Andrews Family Lawyers today.

Book a FREE Consultation

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]]> 4 Tips for Financial Planning and Prenuptial Agreements https://andrewsfamilylawyers.com.au/financial-planning-and-prenuptial-agreements/ Sat, 29 Jun 2024 03:28:32 +0000 https://andrewsfamilylawyers.com.au/?p=6127

Marriage is one of the biggest steps a person will take in life. When two people decide to make a life together, finances are a significant factor. Before marrying, we advise you to understand financial planning and prenuptial agreements. Beyond immediate concerns like wedding expenses, long-term wealth planning is vital to establishing a solid foundation for a marriage. Here are four tips for securing your financial future before getting married.

Communicate your financial planning and prenuptial agreements goal

Couples should communicate about how they will approach financial planning after marriage. This means discussing financial goals, such as buying a house or saving for retirement. A married couple should be on the same page when making financial plans.

To achieve your financial goals both parties should be transparent about their financial situation and credit history. What assets and debts are they bringing into the marriage? What are your spending habits? Discussing these issues honestly will help start the marriage with an understanding of where you’re both coming from.

Learn more: 3 Ways to Resolve Financial Settlements During Divorce

Family planning for financial goals

Family planning should be carefully considered before getting married. Parents have many financial decisions. Obviously, the number of children you want is a key factor. Other relevant issues include whether you’ll opt for private education or public education, sports and other extra-curricular activities to involve your kids in, handling any medical expenses, and more.

Another part of family planning is organising your estate. You can protect your assets by drafting a will. Marriage automatically invalidates all existing wills made before the union. The only exception to this is wills that have an “in contemplation of marriage” clause. Both parties should consider how they would like to set up their will for their family’s financial wellbeing.

couple in kitchen of brisbane home sorting through finances.

Prenuptial agreement or not

A binding financial agreement (BFA) entered into before marriage is called a prenuptial agreement. They are a popular way of arranging for the division of marital property in the event of a divorce. While they may not be for everyone, they do offer financial benefits. A party who has significantly more assets than their spouse may wish to draft a prenuptial agreement to protect their property.

A BFA doesn’t need to cover the entire marital pool. It can cover specific assets that may be particularly important. This could include rare artwork, classic collectible vehicles, and the like. Some rare assets can be difficult to assess without a specialised valuation expert. A formal agreement ensures that these assets are handled in a way that’s agreeable to both parties.

Set financial boundaries for financial benefits

If you’re sharing a joint bank account, it’s often worth determining each person’s responsibilities when it comes to handling money. Is one person going to be in charge of staying on top of bills and purchasing necessities such as groceries? Also, consider making a financial plan to set down how you’ll make decisions around money. For example, you may want to make it a rule that if one person wants to purchase something worth over a certain amount, you discuss it first.

It’s also a good idea to save money in an emergency fund in case you need the financial support to cover a future debt. Speak with financial planners for further education on what your needs are regarding a suitable “rainy day” fund.

Conclusion on your financial situation

Getting married is a major commitment for many reasons. Joining your lives together comes with many considerations, not the least of which is how you’ll handle your joint finances. Money problems are one of the most common reasons for marriage breakdowns. However, you can ensure that your union has a stable financial foundation. This article has essential tips on how to approach your finances for a healthy relationship.

For assistance with property matters, our experienced team can help. Contact us today to set up a prenuptial agreement or any other family law matter.

If you need advice on consent orders, contact our office today.

Book a FREE Consultation

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]]> What Is Prenup? (The Importance of Prenuptial Agreement in Australia) https://andrewsfamilylawyers.com.au/what-is-prenup/ Mon, 03 Jun 2024 05:12:41 +0000 https://staging.raw.com.au/?p=1178

No one enters into a marriage or partnership expecting it to fail. However, no one buys health or home insurance expecting to fall ill or experience a break, yet most people do the latter without question.

This article will explain what a prenup is, and how creating a prenup or binding financial agreement in Australian law can help you outline clear expectations with your partner about the division of assets.

Key takeaways

  1. Prenuptial agreements, commonly known as prenups, are legally binding documents that establish a framework for asset division in case of separation or divorce. 

  2. It is important to clarify that prenuptial agreements are not exclusive to the financially affluent. Rather, they can serve as practical tools that benefit couples from a variety of financial backgrounds.

  3. For a prenup to be legally binding, it must meet certain conditions, including full disclosure of each party’s financial situation.

  4. By specifying asset division in advance, prenups help avoid lengthy and expensive legal disputes during divorce proceedings, making the separation process smoother and more amicable.

  5. Prenuptial agreements encourage open communication about financial matters between partners, fostering a healthier, more transparent relationship foundation.

What Is Prenup (Prenup Agreement)?

A prenup or prenuptial agreement is a legally binding document under the Family Law Act 1975 that protects each party’s pre-marital or pre-relationship assets.

A prenup agreement is a legal log of each party’s assets and liabilities before entering the relationship. It then outlines how these assets may be divided in separation or divorce. To make the agreement legally binding, it must satisfy the following criteria;

  • Each party is to disclose their financial position, including assets and debts, fully;
  • The agreement must be put in writing;
  • Each party must have independent legal counsel before signing the agreement;
  • Each party must sign the agreement willingly.

Do Prenups Exist in Australia?

Yes, prenups exist under Australian law and are called binding financial agreements. They can apply to both married and de facto relationships and essentially exclude the Family Law Act from having any say in deciding how to divide assets and liabilities in case of a relationship breakdown. 

AFL - Prenuptial agreement 1

Learn more: What Is a Binding Financial Agreement?

Common Misconceptions About Prenuptial Agreements

Prenuptial agreements are often misunderstood. Many believe it is only necessary for the wealthy to signal a lack of trust or anticipate marriage failure.

However, prenups are practical tools that can benefit all couples, regardless of their financial status. It is like insurance, protecting the interests of both parties and creating a solid foundation for the relationship by fostering open communication about finances.

Prenups provide clarity and security for the future, and they are not about anticipating negative outcomes but about preparing responsibly for any eventuality. It can ensure peace of mind and strengthen the bond between partners.

Who Can Get a Prenup?

While prenups are usually associated with marriage, they can also be created for de facto relationships and apply to both heterosexual and same-sex couples. In other words, anyone can enter a binding financial agreement, provided both parties willingly agree to and sign the deal.

It’s also important to know that a couple can enter into a binding financial agreement at any stage of their relationship, including before getting married or entering a de facto relationship, during the relationship, and even after the relationship has ended, which is called a financial separation agreement.

Prenuptial Agreements Requirements

To make a prenuptial agreement legally binding, several requirements must be satisfied.

These include;

  1. Both you and your partner must receive independent legal advice from separate lawyers before signing the agreement. This advice must outline your specific rights as well as the advantages and disadvantages of signing the contract;
  2. The agreement must be signed by both you and your partner in the presence of each of your lawyers;
  3. The legal advice given to each party must come from a solicitor who is currently admitted to legal practice in Australia and
  4. Each respective lawyer must provide a signed statement to their client (each party, i.e. you and your partner) confirming that you each received independent legal advice.

It’s important to know that if these criteria are not met, your prenuptial agreement may not be binding and may be open to being void or challenged.

AFL - prepare for a consent order application

What Do Prenups Cover?

A prenuptial agreement can cover all financial aspects of each individual in the relationship, as well as shared assets and liabilities.

It can outline the separate assets, liabilities, and financial resources of each party obtained or accrued before you entered the relationship. This could include property owned, debts owed, and superannuation accrued.

It can also cover financial assets and debts acquired during the relationship, such as the family business, home or investment property, mortgages, car or personal loans. Finally, it can also govern if and what a

Benefits of Signing a Prenup

Creating and agreeing to a prenuptial agreement before entering into marriage, or at the start of a de facto relationship, allows both parties to amicably concur on how they might divide any assets should the relationship fail.

While these agreements are not always binding, they provide a legal basis for resolving property and financial disputes.

A binding financial agreement takes the guesswork out of divorce and separation proceedings by clearly stating who is entitled to what. It can also save you a lot of time and money, as if both parties disagree on who is entitled to what, the legal process can be drawn out and incur more significant fees or even court proceedings.

Some reasons you should consider entering a binding financial agreement:

  • A prenup allows you to protect your valuable assets, which is especially important when there is a significant difference in income or ownership of personal assets;
  • The agreement is not set in stone. You and your partner can agree to change or cancel a contract at any time;
  • The agreement can save significant time and money, with the division of assets finalised quickly in the event of separation or divorce;

AFL - organising of conset order application

To know more about the benefits of prenuptial agreements, check out our blog here.

Disadvantages of Signing a Prenup

In a relationship where one party earns significantly more than the other or does not work (a stay-at-home parent, for example), it’s essential to ensure that the prenuptial agreement outlines the value of what the non-working partner brings to the relationship or family.

The time spent caring for children, for example, is a significant contribution that needs to be included when considering the division of assets or the payment of spousal maintenance in a prenuptial agreement.

If a contract does not consider this, you may be disadvantaged if you do not receive what you believe you may be entitled to.

This is why it is imperative to seek the advice of an experienced family lawyer to help you understand what you may need to have included in the agreement.

AFL - Prenuptial agreement 2What Do I Need to Consider Before Entering a Prenuptial Agreement?

There are several things to consider before committing to a prenup.

Firstly, you need to consider how you are planning for the future. It’s important to remember that if a relationship never breaks down, a prenup never gets enforced.

By entering into a binding financial agreement, you and your partner prepare for the worst-case scenario without the emotion or stress of doing it during a breakup.

It’s essential to seek legal advice to discuss your situation because, if completed correctly, these agreements prevent the court from stepping in to divide your assets.

How To Arrange a Prenuptial Agreement

To make a prenuptial agreement legally binding, it must adhere to strict technical requirements and, therefore, be prepared by an experienced family lawyer. 

How Much Does a Prenuptial Agreement Cost?

There is no fixed price for filing a binding financial agreement in Australia, as it is prepared and reviewed by a second independent lawyer. 

Discover: 3 Reasons Why You Should Hire a Family Lawyer in Brisbane

Are Prenuptial Agreements Always Binding?

It’s important to understand that prenuptial agreements are not set in stone. There are several reasons a prenuptial agreement may be voided, so it’s essential to seek the advice of an experienced family lawyer to understand the risk of this in your situation and how this may be avoided.

Some reasons an agreement may be immediately voided include;

  • The agreement is found to be fraudulent (which could happen if you or your partner intentionally fail to disclose financial information);
  • Legal or technical requirements are not met, such as independent legal advice not received by one or both parties;
  • You or your partner were pressured into signing the agreement;
  • The agreement cannot be practically fulfilled.

AFL - Property Settlement 1

How are Prenups Enforced?

Due to the nature of a prenuptial agreement being a legally binding document, it essentially removes the Family Court from having a say in the division of your assets.

If you wish to dispute the agreement, you must seek legal counsel, and the matter will be taken to court. However, this does not guarantee it will be heard, let alone thriving.

Conclusion

A prenuptial agreement is a legal contract that defines how shared assets and debts will be divided in the event of a couple’s separation. It is not solely intended for affluent individuals but is recommended for all couples.

To ensure enforceability, strict legal requirements must be met. By predefining asset allocation, prenuptial agreements help avoid legal disputes and foster transparency and mutual comprehension between partners.

It is a practical measure to secure one’s financial future and strengthen the relationship.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Book a FREE Consultation

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]]> How Much Is the Cost of Binding Financial Agreement? (Understand the Fees) https://andrewsfamilylawyers.com.au/cost-of-binding-financial-agreement/ Thu, 16 May 2024 06:51:26 +0000 https://andrewsfamilylawyers.com.au/?p=5465

After a divorce, spouses must come together to determine how to split their assets. Binding financial agreements are one way to help you do that. But are they right for you? An important factor influencing that decision is the cost of the process.

In this article, we’ll examine the cost of binding financial agreement. This will help you decide whether it’s right for your circumstances.

What is a binding financial agreement?

A binding financial agreement (BFA) is a legally binding contract that sets out how a marital asset pool will be divided after a divorce. BFAs can be entered into at any time. Parties can create a BFA before, during or after a relationship ends. The agreement can cover an entire asset pool or only include specific property.

Requirements for a BFA

BFAs must meet certain criteria in the Family Law Act to be considered legally binding.

Voluntariness

Both parties must enter the agreement voluntarily. There cannot be any duress, undue influence or coercion. Each spouse must also get independent legal advice from a family lawyer before entering the agreement.

Full Financial Disclosure

Both parties must disclose their full financial position. This means providing information on assets, liabilities and other financial resources you can access. This is important because it allows each party and lawyer to accurately understand the asset pool.

Certification of Independent Legal Advice

Both spouses must also receive advice independently from a qualified binding financial agreement lawyer before entering the agreement. Once the lawyer has advised them of the agreement’s merits, they will issue a certificate confirming their client received the advice.

Discover: 3 Easy Steps Process to Create a Binding Financial Agreement

The cost of binding financial agreement

The cost of binding financial agreements depends on many variables. Legal fees can amount to anywhere from $3000 to $10,000 on average. That’s a broad range which reflects the many factors at play. So, what determines the cost of a BFA?

Agreement complexity

Some asset pools are extremely complex and require specialised knowledge to divide properly.

Valuation Challenges

Business interests are often part of property settlements. These interests can be difficult to value. Hiring a professional with specialist knowledge, such as a forensic accountant, is generally necessary.

They’ll examine the business’s cash flow, market conditions and financial statements. Think about a business’s goodwill. While abstract, goodwill can carry a lot of value. This will all add considerable cost to the BFA.

Unique and Rare Assets

Settlements can also face challenges from unique items like art pieces, collectibles, vintage cars, etc. Valuing these items can be difficult for various reasons.

Their market value can often be subjective. Two experts may give a different value for the same asset. If these items form part of the property pool, lawyers will work with specialist appraisers to determine their market value. This process is often complex and expensive.

Cryptocurrencies

Cryptocurrencies have exploded in popularity. As a result, they’re popping up more and more in financial agreements.

However, they can be complicated and expensive. The value of cryptocurrencies changes quickly. It’s important to consider what point in time you value the cryptocurrency. However, assigning a fair dollar value to you and the other party is tricky.

Tracking down cryptocurrencies is also a problem. Cryptocurrencies are decentralised. There’s no authority the Court can subpoena to get information about them.

Complex Ownership Structures

Some assets may be held within complex ownership structures. This includes family trusts, partnerships, or corporate entities. Understanding each party’s ownership interests and entitlement involves different areas of law. These include corporate, tax, and trust law.

finding the right binding financial agreement lawyer for you

Disclosure requirements

Satisfying disclosure requirements incur varying legal costs depending on what’s involved.

Gathering Financial Information

Each party must accurately disclose their finances. Gathering this information can be time-consuming. The parties may have complex financial portfolios or assets across various accounts or jurisdictions.

Negotiations and Revisions

Full financial disclosure often leads to negotiations about the treatment of assets. Disagreements may need multiple rounds of negotiation. This increases legal fees and administrative costs.

Verification and valuation

A family lawyer may need to verify financial information. That can include obtaining tax returns, bank statements and other documentation. This can be time-consuming, which may lead to additional costs.

You may also need specialist valuers for unique or complex financial instruments.

Find out: Consent Orders Vs Binding Financial Agreements: What is the Best for You?

Managing expenses

A BFA’s expenses can get out of hand quickly. But parties can manage the cost.

Clear Communication

Communicating properly helps you avoid unnecessary disputes. Discussing your goals and your finances upfront can help streamline the drafting process. Doing so can reduce the need for extensive negotiations later on.

Define Objectives and Priorities

Define and prioritise the objectives the BFA should cover. Identify critical assets and liabilities you want in the agreement. You can focus negotiations on vital issues. This will make the process simpler.

Choose the Right Lawyer

Hire a family lawyer who has experience drafting BFAs. Their practical approach to the agreement will keep costs down. Look for a lawyer who offers transparent fee structures. Many lawyers offer fixed fees for BFAs.

Consider Alternative Dispute Resolution

Disputes can arise during negotiations. Consider alternative methods for dispute resolution. Mediation is generally the better way to work through conflicts. It’s more efficient and cost-effective than litigation. It’s also less stressful than attending court.

preparing a binding financial agreement

Conclusion

BFAs are flexible. Parties can enter into one at any time. However, they can be costly. Complex asset pools may require valuation experts and drawn-out negotiations.

Good communication and an experienced family lawyer can keep binding financial agreement costs down. You can then draft an effective agreement.

If you want advice on dividing your property, our team can help. 

Book a FREE Consultation

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]]> What Is a Consent Order? (Why It’s Useful for Family Law Matters) https://andrewsfamilylawyers.com.au/what-is-a-consent-order/ Wed, 15 May 2024 15:42:30 +0000 https://staging.raw.com.au/?p=1145

Dealing with family law disputes can be challenging, and consent orders can be a helpful solution. But what is a consent order? 

This guide will give you the basics to move forward and address your legal matters effectively and confidently.

What is a Consent Order? 

A consent order is a legally binding agreement the court approves to formalise matters related to property settlements, parenting arrangements, or spousal maintenance following separation or divorce.

By agreeing to the terms and conditions of the order outside of litigation, parties can avoid lengthy court battles, reduce costs, and maintain greater control over the outcomes of their disputes.

A clear understanding of a consent order and how it fits into the process of resolving family law disputes can help reduce the stress and uncertainties associated with such proceedings.

AFL - consent order 1

The Legal Framework for Consent Orders

Understanding the legislative foundations governing consent orders and their role in family law dispute resolution processes:

1. Family Law Act 1975

Consent orders are governed by the Family Law Act 1975, granting courts the authority to make orders with the parties’ agreement regarding children, property, or spousal maintenance matters.

2. Court approval

Although the terms of a consent order are agreed upon by the parties involved, the order must be submitted to and approved by the court to become legally binding.

3. Legally binding

Once the court approves, consent orders have the same legal effect as court-imposed orders, meaning both parties must adhere to the agreed-upon terms or face potential legal consequences.

The Benefits of Consent Orders

Exploring the advantages of pursuing a consent order as opposed to engaging in potentially protracted litigation:

1. Cost savings

Consent orders can save parties substantial legal costs by avoiding court appearances and lengthy negotiations associated with litigation.

2. Time efficiency

As the parties agree upon the terms of the consent order, they can significantly reduce the time spent resolving their disputes compared to going through the court process.

3. Control over outcomes

Consenting parties can shape the terms of the agreement to suit their specific needs and circumstances, maintaining greater control over the outcome instead of relying on an imposed court decision.

4. Reduced conflict

Consent orders encourage cooperation and communication between parties, promoting a more amicable resolution and minimising conflict during the dispute resolution process.

AFL - consent order organised

Find out: Consent Orders Vs Binding Financial Agreements: Which is the Best for You?

The Process of Obtaining a Consent Order

An overview of the steps involved in drafting, negotiating, and lodging a consent order with the court:

Step 1: Negotiation and agreement

The parties must first negotiate and agree upon the terms of their consent order, often with the assistance of their respective legal representatives or through alternative dispute resolution methods such as mediation.

Step 2: Drafting the consent order

Once the terms have been agreed upon, consent orders must be drafted clearly and legally enforceable, typically by qualified legal practitioners.

Step 3: Lodging the consent order

Consent orders must be submitted to the court for approval and a signed Application for Consent Orders document. Parties should also include any supporting documents or evidence that may be relevant to their application.

Step 4: Court approval

Once lodged, the court will review the consent order to ensure the terms are just and equitable in property matters or the child’s best interests regarding parenting arrangements. If satisfied, the court will approve and legally bind the consent order.

When Consent Orders May Not Be Appropriate?

Recognising specific circumstances where consent orders may not be the best option for resolving disputes:

1. High levels of conflict

Consent orders rely on agreement and cooperation between the parties. In highly acrimonious disputes, where communication has broken down, reaching an agreement may be challenging or impossible.

2. Domestic violence or abuse

In situations where there has been domestic violence or abuse, consent orders may not adequately protect the victim, and court intervention may be necessary to ensure their safety.

3. History of non-compliance

If one party has a history of non-compliance with previous orders or agreements, consent orders may not provide sufficient enforcement mechanisms, and litigation may be more appropriate.

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Conclusion

Consent orders can be a powerful tool for resolving family law disputes more amicably and efficiently, while empowering the parties involved to take control of their outcomes.

By understanding the legal framework, recognising the benefits, and following best practices on the consent order application process, you can effectively navigate the family law dispute resolution process and protect your interests.

If you want advice with consent orders, Andrews Family Lawyers can help. 

Book a FREE Consultation

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]]> What Should I Do When My Ex Delaying Property Settlement? (Ensure Fair Outcomes) https://andrewsfamilylawyers.com.au/when-wife-or-ex-husband-delaying-property-settlement/ Mon, 15 Apr 2024 02:00:08 +0000 https://staging.raw.com.au/?p=1156

When separating or divorcing, it’s common to want to get it over and done with so you can move on. However, it’s common for one party to delay the settlement of the property.

This can be because it’s a common misconception that you cannot finalise your property settlement until after you’ve finalised your divorce or for other reasons such as not being ready to move on or thinking there might be the advantage of a better result by waiting.

There are many more advantages to finalising your property settlement sooner rather than later.

Here’s everything you need to know when an ex partner delaying property settlement.

Key takeaways

  1. Delays in property settlements can occur due to emotional unpreparedness, lack of understanding of legal requirements, or a desire for a more favourable financial outcome by one partner.
  2. Both parties are legally obligated to disclose all financial information to each other for a fair settlement.
  3. Some ex-partners may intentionally stall the settlement process by avoiding sharing information, ignoring mediation attempts, missing mortgage payments, or cutting off communication entirely.
  4. Delaying the settlement can make the financial situation more complicated, potentially bringing future earnings or debts into the settlement, which may not be favourable.
  5. Taking swift action to handle the property settlement protects personal assets and prevents them from becoming entangled with an ex-partner’s future debts.
  6. Consulting with a family law attorney and considering mediation can help speed up the process and ensure a fair division of assets.
  7. Remember that there are specific deadlines to initiate a property settlement after a separation or divorce, highlighting the importance of timely action.

Why does a wife or ex husband delaying property settlement?

An ex partner may wish to delay property settlement for a number of reasons, and some may be simply because they, or both of you, don’t understand the implications of not finalising a settlement.

You can’t come to an agreement

The most common one is simply because you can’t come to an agreement and your ex feels they are entitled to more than you are offering them. An ex partner may also be feeling emotional about the separation and not prepared to move on, and therefore in denial about the property settlement.

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You’re on good terms, so you don’t need a court-ordered property settlement

Your ex, or even both of you, may believe you don’t need a property settlement because you’re on good terms, so you can simply transfer that asset from one person’s name to another and move on with your lives.

Unfortunately, if you transfer a property from one name to another, you will pay stamp duty. However, the stamp duty cost is waived if you do this in a property settlement. So, calculating the cost of the stamp duty compared to the settlement and legal fees may make it clear that a settlement is more cost effective.

Secondly, if you choose to come to an agreement verbally, this is not legally binding, and therefore, either of you can decide to commence the process of a property settlement at any time, leaving you at risk.

Your ex believes it will financially benefit them to delay

Your ex partner may believe that delaying the settlement will benefit them financially in some way. For example they may wish to stay in control of certain assets, such as the family home, where they may be living rent-free until the settlement is completed.

Secondly, if you have debts until a formal property settlement, these are your responsibility. If your ex gets into debt post-separation, you could end up responsible for some of it when you eventually reach property settlement.

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How do ex spouses delay property settlements?

For a property settlement to take place, both parties involved are legally required to disclose all relevant information, most commonly related to finances. A fair settlement offer cannot be made if all of the information is not made available.

This is called a duty of disclosure and begins before the case starts and continues until the settlement has concluded. Full disclosure includes total direct and indirect financial circumstances such as all sources of income, interest, assets and liabilities such as loans and credit cards.

It is especially important to understand that if new information or documents come to light during the process, disclosure documents must be updated to include this to the courts and all parties involved.

Not complying or not engaging

An ex partner can refuse to consider any offers made or attend mediation sessions to delay settlement. They may do this if they believe it will result in a better offer being made.

Missing mortgage repayments

This is a common tactic that can delay settlement when the family home is an asset that needs to be sold or divided in the settlement. If you are to buy out your ex partner’s share of the home or the other way around, falling behind on mortgage payments can cause issues in qualifying for refinancing. This is because most banks require you to prove six months’ worth of perfect mortgage payments.

Ignoring all attempts at contact

Finally, an ex partner can simply ignore all attempts at contact to delay settlement. This is arguably the most common tactic when the party isn’t emotionally ready to move on.

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Related: 3 Ways for Resolving Financial and Property Matters

What can I do when my ex husband or wife is delaying the property settlement?

The first thing you should do is speak to an experienced family and divorce lawyer. They can assist you in the steps to take to complete your property settlement as quickly and smoothly as possible.

The first step toward reaching an agreement would be to write to your ex partner to ask them for full and prompt disclosure in a specific timeframe. If this doesn’t work or you have evidence that your ex is hiding some assets or information, you can apply to the court for an order to disclose. You can also request a mediation to discuss the settlement with a mediator.

If none of the above works and all attempts to contact and negotiate fail due to your ex, you can apply to the court for a property settlement.

court hammer and books. judgment and law concept

How can I put off my own property settlement?

If you believe it may benefit you to delay your property settlement, you can avoid communication with your ex partner, refuse to disclose information, or not engage with the attempts to settle for a short period of time.

You should avoid missing mortgage repayments at all costs, as this will impact your credit rating and ability to borrow in the future.

You also need to be aware of the time limits that apply, and not to cross these, or let the proceedings reach a court order against you.

What are the advantages of delaying settlement?

As mentioned above, an ex partner will most likely want to delay the property settlement if they believe it will give them an advantage. They may do this because they are aware that you are likely to receive a large sum of money in the near future, you are purchasing a property, or the family home is about to increase in value.

On the flip side, they may have large debts that they know will get larger, so the longer they delay the property settlement, the more debt they may be able to divide with you.

Alternatively, they may want to delay for so long as to completely avoid a property settlement altogether to protect their assets.

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Important: How to Split Assets in Divorce in Australia?

What are the disadvantages of delaying settlement?

The longer you delay your property settlement, the more complicated it can become with your relationships, your assets, and moving on with your life. Finalising your property settlement means that their debts don’t become yours, and your assets don’t become theirs.

Your assets are valued at the time of settlement, not separation

Assets to be divided include property, savings, debts and super, and it’s essential to recognise that things like super and savings will likely grow over time, so the longer you delay the settlement process, the larger these may be.

Similarly, you could purchase a property and receive an inheritance, or if your business grows to make more money, for example, post-separation, but before finalising your property settlement, these assets will be included in the asset pool. Your ex partner is entitled to a portion of anything included in the asset pool.

The same goes for debts or running assets down in value. So if your ex partner is not great with money, there is a risk that you may be required to take on a large portion of their debt, and the further settlement is delayed.

They may also decrease the value of certain assets by withdrawing money from bank accounts, drawing on the mortgage, taking valuable items, or running credit cards up to their limits.

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Holding an amicable relationship with your ex

If you maintain an amicable relationship with your ex partner, you should aim to begin the property settlement process as soon as possible to reach an outcome that suits both of you quickly. Just because your relationship is amicable now doesn’t mean it always will be.

It’s common for relationships to turn sour quickly if one party doesn’t like what the other is doing or if one enters a new relationship. And when this happens, it’s common for the party who is unhappy to want to demand more from the asset pool as a form of payback or feel like they deserve more.

It’s always advisable to speak to an experienced family and divorce lawyer before conversing with your ex-partner about property settlement to understand how it works and what you are both entitled to and obliged to do.

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Inheritance in the event of death

It sounds morbid, but until you get divorced, your ex is still your spouse, and if you or they pass away, the other partner is left with either the inheritance or the debt, even if you have a will. Updating your will post-separation is essential.

However, until your divorce is finalised, your ex may be able to claim under family provision legislation as your spouse and still be entitled to an inheritance.

Updating your will and finalising your divorce and property settlement are also crucial for protecting the inheritance of your children or other family members from whom you wish to receive your assets in the event of your death.

Do you need help with a divorce matter? We can assist you.

Contact us today!

Can you get in trouble for delaying a property settlement?

If you refuse to engage with your ex when they are attempting to complete a property settlement with you, as mentioned above, there are several steps they can take to reach an agreement. If all of their attempts fail, you may find yourself hit with a court order for a property settlement largely outside your control.

To avoid this, it’s highly recommended that you seek legal advice to understand your rights and responsibilities and how to come to an amicable agreement as soon as possible.

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Is there a time limit for completing a property settlement?

Many people don’t realise that time limits apply to finalising property settlement. The time limit depends on the relationship you were in.

If you were in a de facto relationship, you have two years from the date of separation to apply to the court with any property settlement orders.

If you were married, you have one year from the date your divorce is finalised to apply to the court.

There is no time limit if you are separated but not yet divorced. However, you do not need to wait to finalise your divorce before starting your property settlement proceedings. They can and should be started as soon as possible.

If you haven’t agreed outside of these timeframes, you should contact an experienced family and divorce lawyer to determine your options.

Conclusion

It’s important to understand that delaying property settlements can have serious consequences. One party may often not be ready to move on or believe that waiting could benefit them financially.

However, delays can result in higher legal costs and complicated financial ties that become difficult to untangle later.

To handle such situations effectively, involving an experienced family lawyer as early as possible is crucial. If your ex-partner is causing delays, getting professional legal help is essential to protect your rights and avoid prolonged disputes.

If you need assistance with family law matters, Andrews Family Lawyers can help.

Book a FREE Consultation

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