WHEN IS THE RIGHT TIME TO COMMENCE A PROPERTY SETTLEMENT
You do not have to wait until your relationship has ended to prepare a property settlement. Property and financial agreements can be prepared prior to a relationship commencing, during the relationship or after the parties have separated.
There are time-limits that do apply after separation. De-facto relationship property settlements must be brought within two (2) years of the date of separation and married parties must commence their settlement within 12 months after the divorce being made final.
The options to settle your property can be made through mutual agreement, with the assistance of a mediator, or if no agreement is made then the parties can apply to the court.
- If parties can reach a mutual agreement they can then take this agreement to a Solicitor who will prepare a Financial agreement often called a Binding Financial Agreement (BFA). Each person must see an independent solicitor before the agreement can be signed. A BFA is binding once a solicitor’s certificate is received and the document is signed. A BFA can only be ended by agreement, if another agreement is prepared that provides that the first agreement ends; finally, with a court overturning the agreement if it is found to be unconscionable.
- A person to the dispute may make an application to the Court. This is commenced with an Initiating application and a supporting affidavit and filed with the court. The matter will be given a first return date and whether represented by a law firm or self-representing the court will order directions on how the matter will proceed.
Our store has ready prepared property agreement templates starting at $699 which you can adjust to suit your agreement. This will save you $$$. Taking an already prepared agreement to a Lawyer will save you unnecessary hourly rates. You still need a solicitor’s certificate. Difference between us preparing a BFA and Perusing one already prepared, and providing a solicitor’s certificate is $1,000 +
Frequently asked questions
Explanations and suggested legal fees
What is a Binding Financial Agreement (BFA)?
A BFA is an agreement that is drafted in line with the Family Law Act. Each party must received independent legal advice and once signed the agreement is binding. The agreement should reflect an agreement between the parties that is just and equitable. The estimated fees for drafting a BFA are $2,500 -$3,300. The fees will be higher if there is no agreement prior to drafting. Review of an existing BFA draft, advice and a solicitor’s certificate: estimated fees $1,100-$1,500.
Consent Orders by Agreement
When parties have an agreement, they can make an application to the court for consent orders. This requires the parties to complete an application for consent orders and prepare a draft order for the court. The joint application must be filed with the court. Once filed your application will be determined by a Registrar of the Family Court and if they are just and equitable the Registrar will make them an Order. For our solicitors to prepare this application the estimated fees are $2,800-$5,500 if there is an agreement prior to drafting. These fees will increase if the parties are still negotiating the details of the settlement.
Where do we start ?
For parties that are able to communicate, the simplest way is to create a dot point list and provide this to your solicitor. Parties need to disclose their finances and in some cases where property is involved title searches will need to be conducted to correctly record the property details. If the parties cannot communicate then mediation is the next step. If mediation is successful then the mediated agreement can be given to a solicitor to draft into the appropriate legal agreement.
Why do I need to disclose my assets ?
Parties are required to fully disclose all assets to the other party. Not disclosing assets could have severe consequences should your property settlement come before the courts. Please download the court brochure to understand the requirements of disclosure.
Property Mediation where do I go ?
A mediator is an independent third party who can assist parties to come to an agreement. We can mediate your property settlement however if we are engaged as the mediator we will be unable to assist you to prepare your BFA, or consent orders. We have a list of mediators independent to our firm that can be engaged for your mediation. Using an independent mediator enables our solicitors to be able to represent you without conflict. Our mediation service costs are $1,600 .00 for four (4) hours. With each party meeting 50% of the costs of mediation. Meditations longer than four (4) hours will be charged at an hourly rate of $200 per person. Independent mediators will provide their own quotes.
Contributions, Length of Relationship, future health needs, wage disparity and care and age of dependents
Your solicitor can advise you based upon the family law legislation, their experience and decided caselaw how these factors affect your settlement. They will work with you to understand your circumstances and provide advice on what a just and equitable settlement would look like.
We cannot agree, now what ?
The next step is to make an application to the Family Court. This requires filing an initiating application, affidavit and financial statement. Once these documents have been filed, a first return date will be provided by the court. This date requires you to attend at court on that day. It is possible to self-represent at court. There are duty lawyers available on the day of court who can offer some assistance, however it is only in limited circumstances that they will appear in court. Engaging a solicitor is in your best interest to navigate the court system. Attending one of our Q&A sessions about court representation may assist those who want to self-represent.
We have a financial agreement made in a country other than Australia, is it binding in Australia?
The simple answer is No. You will need to have an agreement prepared in accordance with the Australian Family Law Legislation. Contact one of our solicitors if you would like further information about this.