Obtaning Orders

If a marriage or de facto relationship has come to an end, then it is most important that parties finalise all outstanding property and financial issues.

Under the Family Law Act 1975, “property” includes all items of value owned by parties together or separately including, but not limited to, real estate here and overseas, home contents, motor vehicles, funds in bank accounts and superannuation, as well as outstanding liabilities such as mortgages, personal loans and credit card debts. The law applies to all assets and liabilities even if they may be held in the name of only one party.

There is a common misunderstanding that parties who have decided “who gets what” between themselves are protected from any future property claim by the other party. This is not the case, and parties should be cautious not to rely on verbal or unenforceable written agreements, or allow too much time to pass between the date of separation or date of divorce, before resolving outstanding property and financial issues. This can be particularly important in circumstances where the values of jointly or solely owned assets including superannuation has increased, and either or both of the parties have acquired new assets by the time the parties’ family law property settlement is resolved.

Also, there are strict time limits in applying to the Court for property settlement Orders after a divorce is finalised.

The law requires that in negotiating a family law property settlement, each party must make a full and frank disclosure of their financial position (Read more on the concept and requirement of “full and frank disclosure“).

The two common ways of resolving a family law property settlement in accordance with the four-step approach to property division as required under the Family Law Act are:

(1) By agreement; or

(2) By commencing Court property proceedings in the Federal Circuit Court or Family Court of Australia.

If parties are able to reach an “in principle” agreement on how to divide all their assets and liabilities, the agreement can be legally drafted for executing and filing in the Family Law Courts of Australia to become legally enforceable Consent Orders. Consent Orders are simply Family Court Orders made by the consent of both parties.

Fortunately, the majority of our family law matters are able to be resolved by way of Consent Orders, without the need for either party to attend Court. Once Orders are in place both parties must comply with them or risk enforcement proceedings for contravening a Court Order. Of course, where there are complex financial structures or one party fails to make full and frank disclosure of his or her financial position, it may be necessary for one party to commence Court proceedings. Finalising a family law property settlement matter by agreement is often quicker, less expensive and less stressful than asking the Court to decide.

The law encourages families in dispute to reach agreement about the division of property (and spousal maintenance, where appropriate). However, it is important that parties who reach agreement between themselves each obtain independent legal advice as to the agreement reached, to ensure that each party is going to receive what they are entitled to, in accordance with the Act.

Also, in deciding whether or not the proposed Consent Orders should be made, the Court must be satisfied that the proposed division of assets and liabilities including superannuation is just and equitable. This is where competent advice and representation from an experienced family lawyer is important, because a family lawyer has a proper understanding of what the Court would likely accept as being just and equitable in any given circumstance. (Read more on the concept of what is “just and equitable” here.)

Importantly, only a family lawyer can provide reliable advice as to the proper entitlements of each party, based on family law principles. Furthermore, if the Consent Orders are not correctly drafted or do not meet all necessary requirements, the Court may not be prepared to grant the Orders, and the Consent Orders may not be made if the Application for Consent Orders is not filed within 90 days of the date of the first signing of the document.

If parties are unable to reach agreement, then an Application to the Court seeking property Orders is the only way to try and obtain a legal resolution to assets and finances that are in dispute. This can be an expensive and drawn out process, so it is important to instruct lawyers that have experience in family court litigation.

It is important to remember that, despite a matter proceeding through the Courts, the parties are entitled to continue negotiating and reach a settlement at some point prior to the Court finalising the matter. In fact, the Court will continue to encourage parties to try and reach an agreement, rather than the matter proceeding to a final disputed hearing.

The family lawyers at Prime Lawyers are experienced in negotiating property settlements and drafting Consent Orders. We are aware of exactly what is required to be included and can advise you on your rights and entitlements. Where parties are unable to reach agreement, we have the experience and expertise to see our clients through the rigours of lengthy family law property proceedings.

If you require assistance in negotiating a property settlement or in proceedings dealing with a division of property, our experts at Prime Lawyers – Family Law Division can help. Contact us to make an appointment with a family lawyer at your nearest Prime Lawyers office.

We have offices in Sydney, Parramatta, Chatswood, Sutherland and Wollongong.