Reaching agreement with your former partner/spouse regarding property settlement is a great relief for all involved.
Once you have reached an agreement, it is important that you formalise the property settlement agreement, even where both parties agree on the outcome. There are significant advantages to formalising your property settlement agreement, one of the most is arguably that you will be entitled to a stamp duty exemption on the transfer of homes and vehicles. This can potentially save one or both parties thousands of dollars. Critically, it also formally severs the financial relationship between the parties, which greatly minimises the potential for future financial claims.
The most common method to formalise a property settlement agreement is by preparing and executing an Application for Consent Orders and Consent Orders. While you can prepare these documents yourself, we strongly recommend at least one party to obtain a lawyer to draft the documents so you can have peace of mind that your agreement is legally binding and enforceable. The last thing you would want after reaching an agreement is for it all to fall through because it is unenforceable!
The Application for Consent Orders is a court supplied form which is obtained from the Federal Circuit and Family Court of Australia. It requires detailed information about each party’s circumstances including the history of the relationship, the assets and debts of the parties, details as to the contributions of the parties, and any relevant future needs of each party.
The Consent Orders sets out the actual agreement that has been reached between the parties and the agreed upon terms for implementation, which requires comprehensive accounting for all of the assets and debts of the relationship.
Once the documents have been prepared and signed, they are then filed with the Court. There is a small filing fee associated with filing the documents with the Court. The Court reviews the orders to determine if the agreement is just and equitable to both parties, a process which takes approximately 4-6 weeks, subject to the Court’s availability. Upon approval, the Court sealed the documents and makes them available to both parties.
Following court approval and orders becoming available, the parties can then proceed to implementing the agreement, including the transfer of property, shares, vehicles and superannuation.
Written by
Ashlea Taylor
Senior Associate
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