You’ve probably heard more than one family law horror story, so it might be a surprise to read that the Family Law Act 1975 allows people in most circumstances to decide how to deal with their property and childcare matters. If both partners to a relationship are willing to be reasonable and honest, the law mostly lets them make their own decisions; and that can greatly reduce the financial and emotional costs of a relationship breakdown. Not going to court should be the preferred option for most people if for no other reason than your money is better left in your pocket than on the steps of a court. But how is it done?
The first requirement is that the parties must be willing to be reasonable and honest with each other. Start by understanding that no one really wins in the family law courts. The family law courts apply a process that is rational and designed to manage disputes, but it is not a place to seek personal vindication for what happened during or after your relationship. Few people will find that sort of justice in the family law jurisdiction because it is not designed to identify who was in the wrong.
Once partners understand that being reasonable and honest with each other can pay big dividends in terms of cost savings and sanity, three main mechanisms can be used to reach binding voluntary settlements. These are:
- Binding financial agreements
- Consent orders made by the court at your joint request
- Binding child support agreements.
BINDING FINANCIAL AGREEMENTS
Binding Financial Agreements may be used by people who are about to start or who are already in a marriage or de facto relationship. They allow people to make arrangements about all or part of their financial settlement in the event of a relationship break down. They can also be used to finalise financial matters after a relationship ends.
Binding financial agreements can be made before, during or after a relationship and can cover a financial settlement (including superannuation), spousal maintenance and related issues. They can also be used as “prenup” agreements.
Generally, binding financial agreements are not expensive, but strict legal requirements must be met if they are to be effective. If those requirements are not met a binding financial agreement can be set aside by a court.
Binding financial agreements can save you a lot of time and money, but they have to be done well. A do it yourself approach can often prove very expensive.
CONSENT ORDERS
Consent Orders are written agreements made between the parties that are approved by a court. Consent orders can deal with any form of property including superannuation, childcare arrangements and spousal maintenance.
Once the parties reach agreement, draft orders are sent to the court and approved. But the court will only approve them if they are written as enforceable orders and providing they meet certain requirements. Sometimes these requirements mean that complex or unusual property cases are better dealt with through a Binding Financial Agreement. That last point is particularly critical where complex business structures are in use.
BINDING CHILD SUPPORT AGREEMENT
Binding Child Support Agreements are a little like binding financial agreements. They can be used by people who have children to make arrangements about all or part of the support each party will provide for the children. They are usually made after a relationship and can be used as an alternative to or with the Child Support Agency payment system.
In most cases, the Family Law Act 1975 allows parents and parties to a relationship to decide for themselves how to manage the details and problems that arise at the end of their relationship. If you would like more information on how to avoid a family law horror story contact the author at Lawyers By The Bay.
David Galloway
15 September 2019