Binding Financial Agreement after Dissolution of Marriage: Divorce Property Settlement

When getting a divorce there are two processes to consider – one is simply dissolving the marriage itself and the other is dividing the property, spousal maintenance and child support issues.

A ‘Certificate of Divorce’, which contains the dates of the decree nisi and the decree absolute marks the formal end of the marriage.

Getting the divorce.

In Australia it is quite simple to get a divorce – it can be done on-line at http://www.divorce.gov.au/ . This site has information and resources to help you learn about the divorce process and lodge your application for divorce whether it be on-line or offline

Property Settlement / Maintenance and Child Support Issues

Divorced couples who wish to finalise all matters of a financial nature in dispute between them, including spousal maintenance, require some form of legal documentation.

As long as the coupe are communicative and willing to resolve their issues they can be addressed in one of two ways. The couple can make an agreement with ‘consent orders’ being made by a family law court or they can enter into a financial agreement.

A consent order is a written agreement approved by a court. A consent order can cover parenting arrangements for children (a ‘parenting order’) as well as financial arrangements such as transfer and sale of property and spousal maintenance. The court must be satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable", before it will approve them.

Provided for under the Family Law Act 1975, Section 90D refers to Financial Agreements after the dissolution of marriage or divorce. Like other Financial Agreements, section 90D focuses on the division of financial resources of both parties and maintenance of either party after the couple has divorced.

The difference between a Financial Agreement and Consent Orders is you do not need to lodge your financial agreement with the Court for approval, and it is not subject to review by the Court.

If no agreement can be reached then an application for property orders must be submitted to either the Family Court of the Federal Magistrates Court.

An application must usually be made within 12 months of your divorce becoming final. The decision is then made through a court hearing.

Financial agreements 90D (Divorce Agreement) negate the need for the couple to enter court proceedings, reducing the risk of extended litigation and providing certainty of outcome.

Reaching an amicable property settlement agreement quickly about debts, assets and property offers the divorcing couple many advantages;

• * you get to make your own choices
• * you significantly reduce the financial and emotional costs of taking the matter to court
• * you can ensure more open communication with your former partner increasing the likelihood of improved conflict resolution in the future
• * your ongoing relationship as parents, if you have children, is likely be more harmonious and
• * you are able to move forward and make a new life for you more quickly without the strain of ongoing tension and disputes.

A Financial Agreement allows you to decide how to divide joint financial resources out side the court system between yourselves, reducing your legal costs and the stresses associated with protracted litigation.

This Property Settlement Agreement template provides the framework for a compliant property settlement contract that will save you hundreds and possibly thousands of dollars.

Sitting down with your ex now to work out a 'property settlement agreement' and what your agreement needs to achieve, before consulting your legal adviser, will save you considerable time, money and anxiety. Taking the time to work things out between you will also minimise the risk of having a lawyer draft a one-sided agreement that fails to reflect the needs of either party.

Each party must receive independant legal advice.

Once you have drafted your Agreement the law requires that each party must receive independent legal advice and the agreement must contain a certificate from a lawyer stating that each party has received said advice. This ensure that neither party can argue that they were not aware of the impact of the document they were signing.

Making a financial agreement under section 90D is a logical alternative to court action and offers a reliable exit strategy, which lets you relax and get on with your life.