Bowen Buchbinder Vilensky

You Don’t Have to Wait Till Divorce to Sort Out Your Financial Arrangements

By Damien Bowen, Director at Bowen Buchbinder Vilensky Lawyers

28 January 2015

When a married couple decides to part ways, they cannot apply for a Divorce until they have been separated for twelve months.

Some people mistakenly believe this means that important decisions about property and money and children must be left in limbo for the year that they are separated. But this is not the case.

They do not need to be divorced, or separated for 12 months, before they can conclude a financial settlement or formalise arrangements for their children. If they are not able to agree on these issues, they can commence proceedings in the Family Court.

Whether the separating couple have been married or have lived in a de facto relationship, or are straight or gay, they can negotiate and record a settlement agreement about property, spouse maintenance, arrangements for the children and child maintenance.

Agreements can be recorded in two ways.

The most usual way is to formalise settlement agreements by consent orders. Consent orders are obtained by the couple making a joint application to the Family Court for orders in terms of what they have agreed. The documentation lodged at Court contains information which enables a Family Court Judge or Magistrate to approve the orders. It is advisable for the parties to each obtain their own independent legal advice in relation to the agreement and the orders they are asking the court to make.  While legal advice is not an essential requirement, there is the potential for exploitation or manipulation when one of the couple is in a weaker position than the other and has no one to protect his or her interests.

The second way to formalise settlement agreements (but for financial matters only – not children) is with a Binding Financial Agreement (BFA). A BFA must be signed by both parties; each party must have independent legal advice about how the agreement affects their rights and whether it is in their interest to sign the agreement. There is no Court oversight of a BFA.

For couples wanting to go their separate ways and get on with their lives, consent orders or a BFA provides the basis on which they can do this. In the case of married couples, they can achieve a settlement even though they may not yet be legally divorced.

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