We have reached an Agreement, but now what
Posted on 24 January 2023
Allyson Anne
We have reached an Agreement, but now what? Great, the hardest part is done – or is it!?
The hardest and generally most expensive part of a family law property settlement is getting to an agreement with your now ex-spouse. If you have been able to reach an agreement on what your financial split will be, well done!
One step you do not want to miss is making sure it is legally binding! If you don’t make it legally binding now, you may open yourself up for a further property settlement in the coming year/s. The time period in which you or your ex-spouse has to apply to the court for a property settlement under the Family Law Act are:
- One (1) year from the date of your divorce for married couples; and
- Two (2) years from the date of separation for de facto couples.
A property settlement which has not been recorded as a legally binding document will not be enough to stop your ex-spouse making an application to the Court for a property settlement, and it will include all of your assets, even those which you have acquired after separation!
There are two (2) ways you can document the agreement reached with your ex-spouse so that it is legally binding, this is either as Minutes of Consent filed with the Federal Circuit and Family Court of Australia to become sealed Consent Orders or via a Binding Financial Agreement (BFA). There are advantages and disadvantages to both, and depending on your circumstances one or the other will be your best option.
So, while the hardest and most expensive part of a property settlement has been agreed, make sure you document it so that it is legally binding, otherwise you may end up in a situation where you are spending a whole lot more because your ex-spouse decides the property settlement was not ‘fair’ or you start to acquire greater assets following separation.
You will need to have the agreement documented via Consent Orders or a BFA in order to obtain the Transfer Duty exemption which is available under Section 424 of the Duties Act 2001. That is, if there is real property (your home or an investment property) being transferred to either you or your ex-spouse as part of your property settlement, transfer duty will be payable unless you have Consent Orders or a BFA in place which calls for the transfer to occur.
How can Omnia Legal Assist with your Family LAw Matter?
Have you reached an agreement with your ex-spouse and don’t have it recorded via consent orders or a Binding Financial Agreement? Get in contact with one of our family lawyers today to talk through which would be best for you and your ex-spouse. You can schedule a complimentary consultation by calling us on (07) 5415 0248 or emailing us at info@omnialegal.com.au
This article provides general information on legal topics for educational purposes only, and should not be considered legal advice or recommendations. While we have taken care to ensure accuracy, Omnia Legal is not responsible for any errors, and makes no guarantees about the accuracy or completeness of the information. Links to third-party websites do not constitute an endorsement, and we are not liable for any damages that may result from using inaccurate or incomplete information. It's always best to seek legal advice for specific situations.