Separating couples do not necessarily have to go to Court in order to fairly divide their property. Whether the couple is a married couple or a de facto couple, there are alternatives to Court available. A common example is that the couple simply:
a) comes to an agreement about how to divide their property; and
b) formalises the agreement by way of Consent Orders.
Proceedings in the Family Court should be a last resort, when all other possible avenues have been exhausted.
Reaching an Agreement
All parties to a family law property matter are under a general duty to disclose all relevant financial documents; r 13.01 of the Family Law Rules 2004. The parties should be prepared to provide financial disclosure, even if the matter is likely to be resolved by consent. Full and frank disclosure can increase the efficiency of any settlement discussions.
Couples can reach an agreement about the division of property in a number of ways, including:
a) an informal discussion between themselves (without solicitors);
b) mediation (with or without solicitors); or
c) negotiation through solicitors.
The time and cost involved in settlement discussions will vary, depending on each party’s willingness to compromise and how they conduct themselves in negotiations.
Once the parties have reached an agreement, then they can enter into a legally binding settlement. This is done by way of an application to the Family Court for Consent Orders. The parties must sign and file the following documents with the Court:
a) Form 11 Application for Consent Orders;
b) Minute of Consent (in other words, the terms of the agreement); and
c) Evidence of the marriage or de facto relationship – usually a copy of the marriage certificate (for married couples) or a joint affidavit (for de facto couples).
After the documents are filed with the Court, a Judicial Officer will review the application to ensure that that the proposed settlement is fair. If the Judicial Officer is satisfied that the agreement is fair and equitable, then he or she will make the Orders sought.
You do not have to attend Court for Consent Orders. The Court considers the application using the paperwork you have filed. If the application papers are insufficient or incorrect, then the Court will write to you to request additional information to assist with their assessment of the application.
Once the Orders are made by the Court, then the parties may take the appropriate steps to implement (enact) those Orders. For example:
a) transferring property from one party to the other;
b) transferring property from joint names into one party’s name;
c) selling property and dividing the net proceeds of sale;
d) one party paying out a lump sum to the other party; or
e) arranging a superannuation split (for married couples only in WA).
This is general information only, and does not constitute specific legal advice. If you would like further information in relation to this matter or other legal matters please contact our office on Freecall 1800 609 945 or email us now.