Whilst you can stipulate how you want to divide property in the agreement theoretically, the practical division of assets and liabilities does not occur until either party has signed a separation declaration. Read more
The parties have a duty of disclosure to the court as well as each other. If one party tries to hide Assets or liabilities that effect the other party the party could go to court and argue to have the agreement set aside. Read more
Capital gains tax, stamp duties and other charges will not apply to property that is transferred following breakdown of a relationship. In order to secure this exemption, there must be formal documentation, such as a Binding Financial Agreement or Consent Orders. Read more
You have to wait at least one (1) year after separation before you can file an application for divorce in the Family Court. However you can determine how you will manage the property settlement anytime after separation .
The Family Law Act does allow couples to be considered separated even if they live under the same roof. Section 49 defines separation as;
“(1) The parties to a marriage may be held to have separated notwithstanding that the cohabitation was brought to an end by the action or conduct of one only of the parties.
(2) The parties to a marriage may be held to have separated and to have lived separately and apart notwithstanding that they have continued to reside in the same residence or that either party has rendered some household services to the other.”
You can either make a Financial Agreement or apply to the Court for Consent Orders. If apply to the court it must be done within 12 months of the divorce.
Certainly you can pay a cash amount in leu of splitting your super.
Couples often opt to pay a cash amount rather than go through the hassle of formally splitting one party’s super because a cash amount can be used now. Whereas a transfer of a super interest must be preserved until retirement age which may or may not be helpful depending upon your circumstances. You will however need to consider the interest you would be paying on any amount borrowed to compensate for the super split.
If you elect to split your super you will need to include provisions in your binding financial agreement which provide instructions for your superannuation fund trustee.