Documentation of finalised agreement, how is it best achieved?

20/10/2014

The Family Law Act requires that agreements and/or orders be made in the appropriate form if they are to be binding upon the parties to the marriage (or a de facto relationship). 

The Family Court needs to be satisfied that each person to the marriage or de facto relationship understands the consequences of the binding agreement or court order.  As part of the process there is a requirement that there is full disclosure of the financial position of each of the parties to the marriage or de facto relationship.  The Court will not enforce any agreement between the parties unless it is in the appropriate form. 

In property matters (including spousal maintenance issues) generally documents of an agreement between the parties will be by way of:

(a)       Consent Orders made in the Family Court; and/or

(b)       A Binding Financial Agreement

There is not one format of documentation that fits all situations.  We consider all the circumstances and what is the most appropriate situation to protect you in the documentation of an agreement following the breakdown of the marriage or de facto relationship.  Similarly, binding financial agreements can be made before or during the marriage or de facto relationship. 

In addition to the usual matters to be considered in determining what is the appropriate agreement there are other considerations as to what is the best form of the documentation following the breakdown of the marriage or de facto relationship. 

These include such things as:

(a)       The financial position of the parties following giving effect to the agreement.

(b)       The health position of each of the parties following giving effect to the agreement.

(c)        The effect of any change in either the financial position or the health of one of the parties following the breakdown of the marriage/relationship.

(d)       The right of one party to make a claim on the other party’s estate following the other party’s death.  The is usually resolved by appropriate releases under the Succession Act.

(e)       The age and number of children who are required to be cared for and provided for following the agreement.  There are many possibilities such as disability or death of a parent.  This can be covered by various insurances to cover the risks following separation, divorce and breakdown of the relationship. 

Each case is different and all possibilities need to be considered.  Please contact Richard Watson or Dennis Grant at Watson & Watson to assist in the negotiation of the resolution of the property and related matters and as importantly, the documentation to give effective resolution to any agreement.

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