It can be surprising to realise how many financial concerns must be disentangled when a long-term relationship ends. There are the obvious issues of the family home, bank accounts and superannuation. You may also need to consider how to approach other investments, trusts and family businesses. Each financial decision must be weighed up for its short and long term implications, tax consequences and even the impact on third parties.
It may be possible to sort out your financial affairs in a friendly way with your partner. When this becomes difficult, an expert family lawyer can help in negotiations. Your lawyer may recommend mediation, where an independent person assists you and your partner to reach an agreement.
An agreement must be reached within 12 months from the date of divorce, or two years from separation in a de facto relationship. However, negotiations can begin at any time, and it is not unusual for property settlement to be finalized months before divorce is granted.
Once you do reach an agreement then the property settlement should be formalised. There are two options, a Consent Order or a Binding Financial Agreement (BFA). A Consent Order will need to be brought before the Court, which will make the orders you have agreed on. A BFA is simply a contract between you and your partner.
We usually recommend submitting an application for Consent Orders to avoid any uncertainty in the future. Consent Orders are enforced by the Court. Prior to consenting, the Court confirms that both parties have had legal representation and the terms of the agreement are fair and reasonable. There is little risk that financial matters will be reopened down the track once Consent Orders have been granted.
A BFA is not reviewed by the Court, so it is more open to later dispute. To be enforceable you must be able to prove that both parties had independent legal advice before entering into the Agreement. Without this the BFA will be found to be void and unenforceable.
At Bryant McKinnon we take our role as objective advisors seriously and will help you to consider financial options objectively. Our advice is always realistic and we never try to “sell the dream”. We present the costs and benefits of each option and guide you toward outcomes that best secure your financial future.
If an agreement cannot be reached, then the matter will go to Court. If you are divorced, then you need to commence Court proceedings within 12 months from the Divorce Order taking effect. If you are in a defacto relationship then proceedings must commence within two years of the date of separation. Special permission must be sought from the Court to commence proceedings beyond these times.
Bryant McKinnon’s specialist family lawyers have many years of experience advocating for our clients in Court.
Under the Family Law Act both spouses and de facto partners have a duty to support and maintain each other. If one partner is unable to adequately meet his or her own reasonable financial needs, and the other partner has the capacity to pay, then a spousal maintenance arrangement is expected.
Spousal maintenance is not automatic and is best considered as part of an overall settlement of financial matters.
If the matter does go to Court, the judicial officer will consider factors such as income, property, financial resources, earning ability, age, health and children living with you or your former spouse to decide what is most fair and equitable.
Our experienced and specialised legal team can provide:
If you are seeking divorce or separation and would like advice or assistance from a lawyer to ensure the best financial outcome to secure your future, please contact us.