So you’ve talked through the separation or divorce with your former partner and agreed on who gets what and the arrangements for the kids. It all seems final, and everyone is satisfied.
The trouble is, there’s huge potential for later disagreements as to who promised what to whom. People can change their minds, or conveniently forget what assurances they have given in the past.
Most separating couples are eventually able to reach an agreement. Usually they can do so without having to issue court proceedings, although sometimes its only when court proceedings have actually started, and both parties realise the time and expense they are up for in going to court, that provides the impetus to reach an agreement.
So it’s important to do the paperwork correctly, and get it all down in writing. Once an agreement is reached, the parties need to record it properly using the correct forms. This ensures that the agreement is binding and enforceable. Otherwise, if an agreement is not properly drawn and recorded, a person may find they don’t get what they expect and it’s back to court after all.
Usually the best way to conclude an agreement is by way of Consent Orders. These are court orders made by agreement, which go before a judge or court registrar, who once they consider they are proper and appropriate, then makes the orders. Such Consent Orders have similar force and effect as if made by a judge following a court hearing.
To obtain Consent Orders, you must file forms in the Family Court being an Application and the form of the Orders.
Consent Orders are the means in property matters to provide for superannuation to be split, stamp duty to be avoided on the transfer of real estate or Capital Gains Tax to be deferred. They are the way to provide enforceable orders in parenting matters, although many parents prefer to use a more flexible Parenting Plan procedure, which whilst not binding, is a commitment which the court must take into account. .
It is possible to conclude Consent Orders or other agreements without the involvement of a lawyer. But if you want to get it right and avoid the risk of something going wrong, it’s a good idea to get the assistance and advice of an experienced family lawyer to help you to draw up and prepare the documents.