Formalising Property Division Without Litigation

In almost every case, it is better to avoid costly litigation if at all possible and for parties to reach an agreement on how to divide the property from their relationship between them. In fact, family law courts require people to show that they have made a genuine effort to resolve their matter before filing an application.

However, it is common to need some help.

Separation is a stressful time, and emotions often run very high. An impartial third party can be invaluable in helping you work through the process of property division.

Mediation is a form of alternative dispute resolution. It provides a safe environment for you and your former partner to come to an agreement. Because mediators are highly experienced family law practitioners, they can help parties overcome their disagreements and find a way to finalise their dispute without going to Court.

Finding the right mediator, however, is important. We can help you select a mediator who practices in family law on the Gold Coast and help you through every step of the process.

Once you have agreed on how to divide your property, it is important to formalise that agreement by:

• Entering into a binding financial agreement; or
• Asking the court to make a Consent Order.

People often think they can just enter into an informal agreement between themselves. However, this is a very risky option. An informal agreement cannot be enforced and so if one party changes their mind there is no way of holding them to what had been agreed. An informal agreement will also not prevent the parties to it from making an application to the Court for a greater share of the property in the future.

Formalising your agreement via a binding financial agreement or Consent Order is the best way to protect yourself into the future.

Consent Orders are obtained by making an application to the Court for Orders that give effect to the agreement that you and your former partner have reached. Where the Court agrees to making the Orders they can be enforced if one party fails to do what they said they would as part of the agreement.

It may surprise you to learn that the Court will only make orders which it considers to be ‘just and equitable’. If a Court forms the view that the agreement is unfair or not ‘just and equitable’, , then the Court might refuse the application — even if both parties agree on the Orders that are to be made. The Court might also ask for more evidence as to why you believe the orders are fair. We can help you prepare your application and orders to ensure that you include everything you needed to give you the best chance of having the Court make the Orders you are seeking..

A Binding Financial Agreement is an alternative to Consent Orders. It allows couples to enter into a legally binding agreement about how their property will be divided without having to make an application to the Court.  As a Binding Financial Agreement is not reviewed by the Court, it does not have to be ‘just and equitable’ and can offer the parties a greater degree of flexibility on how they finalise their property affairs.

There are strict legal requirements that must be adhered to to ensure that a Binding Financial Agreement is enforceable. These requirements include that both parties to the agreement must have received independent legal advice before they sign it about the effect of the agreement on their rights and about the advantages and disadvantages of making the agreement As such, it is not possible for people to just record their agreement in writing and sign it, even if they sign it in front of a Justice of the Peace.

To find out how our family law Gold Coast team can help, contact our experienced family lawyer Mr Andrew James on 07 5621 3799 or email at info@fjlegal.com.au.