Useful Information & Tips
There are two ways that you can financially separate. One way is to enter into a binding financial agreement. The other way is to seek an order from the court. Most lawyers say that a Binding Financial Agreement is not as strong as a court order.
In both cases you will need to get a certificate of legal advice after you have put together the documents. You can ask a lawyer to do the work for you below, however it will be costly and you will have to provide them with all of the information anyway.
In both of these instances you can not make binding instructions for child maintenance in these documents. This is handled through https://www.servicesaustralia.gov.au/individuals/child-support
Below are the words directly from the Federal Circuit Court webpage:
Why settle without going to court?
It saves you time and money if you can reach agreement without going to court. You also know exactly what each of you will get, whereas, by going to court, there is uncertainty waiting for a judicial officer to decide for you. Additionally, long court proceedings can increase stress and add to the pressure that you and your family are under.
See also: dispute resolution.
How do I formalise our agreement?
You can agree on how your property should be divided without any court action. You do this through either:
- a financial agreement, or
- an agreement formalised by applying for consent orders in which you ask a court to make orders in the terms of your agreement.
For more information on the process of formalising your agreement, see the How do I – Apply for Property and Financial Orders page and Applying to the court for orders fact sheet.
What are financial agreements?
The Family Law Act 1975 provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’.
Sections 90B–90KA of the Family Law Act 1975 deal with financial agreements by parties to a marriage. Sections 90UA–90UN apply to financial agreements by de facto couples. The Act only provides for financial agreements between de facto couples if the parties to the relationship were ordinarily resident in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.
You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
- financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship
- financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship,
- any incidental issues.
For a financial agreement to be legally binding, you must both have:
- signed the agreement, and
- received independent legal and financial advice before signing.
Can a financial agreement be set aside?
A court can declare the agreement invalid, and set it aside. The situations in which that is possible are provided at Section 90K (married couples) and Section 90UM (de facto couples) of the Family Law Act 1975.
What are consent orders?
A consent order is a written agreement that is approved by a court. Signing draft consent orders means you agree with the orders and will follow the terms stated in the document. When the consent order is made, it has the same effect as a court order made by a judicial officer after a court hearing.
Consent orders about property and financial orders may deal with:
- transfer or sale of property,
- splitting of superannuation,
- Child maintenance and spousal maintenance.
You and your former partner can apply for consent orders to be made in the Family Court without going to court.
If proceedings have been commenced in the Federal Circuit Court, and you subsequently reach an agreement, you can ask the Court to make orders by consent.
Binding Financial Agreement
For a Binding Financial Agreement, go to our Documents Hub and look under Separation Agreement.
Consent orders DIY Kit
You can also access the Federal Circuit Court DIY kit here.
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