When couples separate, the inevitable conversation around dividing property is a task that most would like to avoid. We get it, separation and divorces are hard! And, they can be expensive!
For some, the task is like ripping off a band aid. It stings at first, but lives begin to repair themselves and the memory of the separation and settlement, whilst always resembling a scar to be remembered, no longer causes any pain.
For others, it can feel like continually reopening a wound that won’t heal, with no end in sight. The good news is, it doesn’t have to be a long, torturous process, nor does it have to be expensive.
That is why we have put together this handy guide explaining how to finalise your property settlement in Australia, which includes what consent orders are and an outline of the actual process of filing for consent orders and putting everything in motion.
First: Work out the property pool & reach an agreement
Before you’re tempted to jump the gun and start furiously drafting a ‘settlement agreement’, you first need to work out the assets, liabilities and superannuation entitlements that both you and your former partner held (whether jointly or separately) at the time of separation. This is known as the ‘property pool available for distribution’ or ‘property pool’ for short.
Once you and your former partner have agreed on what items make up your property pool and their values, you will need to work out how to divide the pool. This can often include conversations regarding who will be keep the house and ‘pay the other one out’, who retains the credit card debts and who gets what from the household contents.
If you are struggling to have a conversation with your former partner regarding your property settlement, you could consider commencing mediation before making the costly decision of engaging lawyers for negotiations or Court proceedings.
Our Property eGuide outlines all of the information required for your property settlement discussion, including template property pool tables, guidelines on how to reach a fair settlement and demystifying the Court’s ‘4 Step Process’.
Next: Prepare your Application for Consent Orders
Now that the hard part of reaching an agreement is over, the next step is to make it legally binding. This is achieved through a Binding Financial Agreement or Consent Minutes of Order. Generally speaking, most people choose to make their agreement legally binding in Consent Orders.
When you are ready to formalise your agreement, you will need to prepare an Application for Consent Orders and Consent Minutes of Order. The Application form includes information about you and your former partner, the property pool and the reasons why you have reached the agreement (this is to help the Court decide whether the agreement is ‘just and equitable’ or fair). The Order details the actions that you and your former partner may need to take, such as transferring property or clearly stating that you each retain all assets and liabilities in your possession without division. One of you will be listed as the ‘Applicant’, whilst the other is the ‘Respondent’.
Once your documents are prepared, you and your former partner will each need to sign both documents in order to confirm that you each agree to the property settlement and the Orders you will be asking the Court to make. Be warned, there are multiple pages to sign so make sure your pen has plenty of ink.
Then: File your Application with the Court
Now that your signed Application is in your hot little hands, it’s time to file it with the Family Court.
Before you file your application, you will need to make two photocopies of the original signed documents (so that you have three copies in total). These documents are then filed with the Family Law Courts (or the Family Court of WA). To file your documents, you can either physically attend your local Family Courts registry and file in person (please contact us if you are unsure of your local registry). Alternately, you can file your documents by post.
When you file your application, you will need to pay the Court filing fee. You may also be eligible for a fee reduction. See our Frequently Asked Questions for more information about the Court Fee or contact our Support Team if you have any further questions.
Lastly: Put your Orders into motion
After you filed your Application for Consent Orders with the Court, it will be processed through the Court system. The Court will stamp your Application document so that it is recognised as an official ‘sealed’ document of the Court. The Court will keep the original Application document and the three copies of your Orders while your request for property settlement orders is considered by the Court. The remaining two copies of your Application form are sent back to the person who is marked as the ‘Applicant’ who should then give one (1) copy to the Respondent.
From here, a Registrar of the Court will consider your application. The Registrar may consider whether the Orders meet Family Law requirements, such as the agreement being a fair division, and that all of the procedural requirements have been met, such as affording procedural fairness to a superannuation fund if you have agreed to a superannuation split. If the Court is satisfied that the Orders are appropriate, the Orders will be dated, signed and sealed by the Court and thereafter legally binding. It is then up to you and your former partner to comply the Orders, such as paying out a lump sum payment or transferring property.
If the Court is not satisfied that the sought Orders meet Family Law requirements, the Orders will be requisitioned. This may occur in circumstances where the Orders may not be considered fair or the Court cannot comply with the Order. The Court will generally send out a letter to the Applicant detailing their concerns and asking that the Orders be amended or extra information provided. You will be allocated a time limit in which to respond to the Court and resubmit your Orders for further consideration.
While all of this may sound a bit confusing or overwhelming, don’t forget our Property Settlement Kits and Support Team are available to make the process easy and help along the way. Our handy Property eGuide (free with the purchase of our Property Settlement Kit) outlines all of the information you need for a property settlement and our Property Settlement Kits provide you with a completed and personalised Application for Consent Orders and Consent Minute of Order to make your agreement legally binding.
We hope you have found today’s blog useful.
If you have any questions or comments, please get in touch with us here.
The eDivorce team
* The Family Law Courts are Federal Courts which have jurisdiction in all States and Territories of Australia, except Western Australia. WA has its own Family Court, the Family Court of Western Australia (“the FCWA”). This means WA residents must apply to the FCWA for divorce. Please note that eDivorce Kits and eGuides can still be used by WA residents and lodged with the FCWA.
**These steps are designed to assist people to achieve a simple stress-free property settlement. If your situation is complex you may need to obtain legal advice and/or financial advice.