How is our property settled?

If you agree?

Consent Order: Many separating couples divide their property without Family Court action. They reach agreement between themselves or with the help of solicitors or mediators. The Family Court can formalise the agreement so that it makes the agreement legally binding. Either party can apply to the court for Orders to be made by consent. If the court agrees that the division is fair; it will make a 'Consent Order'.

BFA: There is another way of securing a final and binding settlement in property matters. In appropriate circumstances, and with the assistance of legal advice, you and your spouse might agree to enter into a Binding Financial Agreement. There are times where such an agreement is more advantageous than entering into a Consent Order. Among other things, the Binding Financial Agreement can resolve spousal maintenance issues. Also, a settlement which is outside of what the Court would think was a fair divison can be made using a Binding Financial Agreement. 
When deciding whether or not the agreement is fair, the court will take into account your circumstances and your spouse's circumstances. It is not always the case that an equal division of property will be fair in all cases. The court has the discretion to determine the issue of whether the proposed division is just and equitable.

If you can't agree?

If you and your spouse can't agree on a settlement, then either of you can apply to the Family Court or to the Federal Circuit Court for an order on any issues that you disagree about. You can make the application any time after a marriage has broken down. If you have already divorced, you must apply within 12 months after the divorce, as otherwise you will need the permission of the Court to proceed with your application. Even after the legal proceedings have started, many disputes can be settled by negotiation between the couple and their lawyers. Unfortunately, the longer it takes to resolve a matter, the higher the legal costs.

The Family Court's mediation service may help when you and your spouse cannot agree on how to divide up property. Mediation can help you explore possible solutions.

You should seek legal advice before and after mediation and discuss any proposed resolution with our family lawyers.

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