Reaching an agreement with your former partner as to your property may have advantages such as allowing you to make the decisions that best suit your circumstances and reducing the financial and emotional costs of legal proceedings. A dispute resolution service or a lawyer may also be able to help you reach an agreement without going to court.
Reaching an agreement
If you can both agree on how your property and money should be divided, the Family Law Act allows you to finalise your arrangements with either a financial agreement or by applying for consent orders. You must apply within one year of the date of your divorce becoming final or within two years from the date your de facto relationship ends. You can only apply after this time if there are special circumstances and the court allows it. The Act also sets out the principles of fairness that the court will look at to decide if your agreement is fair.
If you cannot agree on the division of your property, then you can apply to the Family Court or the Federal Circuit Court for financial orders. It is in your best interests to get advice from a lawyer to make sure that you understand your legal rights and responsibilities before you sign any agreement or orders.
The Family Law Act allows the parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their relationship break down. For de facto couples in Western Australia, these laws are in the Family Court Act 1997 (WA).
Agreements can be entered into before beginning a relevant relationship (they are sometimes called a prenuptial agreement but the legal term is financial agreement), during the relationship or after the relationship ends. A person cannot enter into a financial agreement if they are a party to another valid and current financial agreement. If you want your agreement to be legally enforceable, you must both have your own lawyer who has given you independent legal and financial advice before you signed the agreement.
Financial agreements can cover:
- financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship
- financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship
- any incidental issues.
Varying financial agreements
Financial agreements are not filed in the court and there is no requirement for a fair division of the property. Financial agreements are meant to be final, but in some cases you may be able to ask the court to consider a request to cancel or alter a financial agreement, including where:
- your consent was obtained by fraud or under duress
- the agreement was entered into to attempt to defraud or deceive someone, including a creditor
- the agreement covers a superannuation payment that cannot be split
- since the agreement circumstances have changed significantly since and it is no longer practical (not just inconvenient) to carry it out
- there is a major change in circumstances regarding the children’s care and welfare
- the other person acted in a way that is unconscionable (unethical or unfair).
Consent orders are a written agreement that is approved by a court.
You can apply for consent orders to be made without actually going to court. A solicitor can prepare the application and draft orders for you, or you can prepare them yourself. Forms are available online.
Signing draft consent orders means you agree with the orders and will follow the terms stated in the document. If the court approves the draft orders they will have the same effect as orders made after a court hearing. Consent orders may deal with any financial orders, including the transfer or sale of property, spousal maintenance and splitting of superannuation.
De facto couples who wish to file for consent orders must meet the criteria set out in the Family Law Act. Before making the orders a court will need to be satisfied that they are properly drafted and that the terms of the agreement are fair. The court will consider the application and if it agrees to make the orders each party will receive a sealed consent order document to show that is has been approved. If the court has concerns or questions regarding the evidence in the application you will be contacted to provide further information. The court will let you know if your orders are not approved.
One of the court’s aims in making consent orders is to make sure that they are final. Therefore, it is very difficult to set aside property consent orders. To do so you must prove that there was some dishonesty or fraud that lead to your agreement, or it is not practical to carry out the orders (not merely inconvenient) or exceptional circumstances have arisen in relation to the care, welfare and development of the children of the relationship.