Consent Orders or Binding Financial Agreements
Once an agreement has been made in mediation parties have two main choices when taking the next step to make the agreements legally binding. It is important that you understand both options and seek legal advice on which one is best suited to your circumstances.
Binding Financial Agreement
A Binding Financial Agreement sets out how all or any of the property or financial resources of both parties to a relationship is to be divided.
You can make a Binding Financial Agreement before, during or after a marriage or de facto relationship. These agreements can cover:
• financial settlement (including superannuation entitlements) after the breakdown of the relationship
• financial support (maintenance) of one party by the other after the breakdown of a marriage or a de facto relationship
• or any incidental issues
Can we draft and sign a Financial Agreement without a lawyer?
A Binding Financial Agreement is only legally binding when:
1. The Agreement is signed by both parties.
2. Before signing the Agreement, each party was provided with independent legal advice about the effect of the Agreement on their rights, as well as the advantages and disadvantages of making the Agreement.
3. After signing the Agreement, each party was provided with a signed statement by their lawyer confirming that advice was provided.
4. Signed copies of the two lawyers’ statements are exchanged between the parties.
5. The Agreement has not been terminated or set aside by the court.
Can a Binding Financial Agreement be overturned?
Yes, Binding Financial Agreements can be overturned by the Family Court if they are not carefully drafted or properly executed.
The most common reasons for Binding Financial Agreements to be overturned are as follows:
• The Agreement was obtained by fraud or under duress (for example, requiring someone to sign shortly before the wedding under threat).
• There was a failure to disclose assets or relevant information.
• The Agreement was entered to defeat or defraud a creditor
• There have been significant changes to either party’s circumstance
• There have been changes in circumstances relating to a child, and it would result in hardship for the child or their caregiver if the Agreement is not set aside.
To ask the Court to set aside a Binding Financial Agreement, you will need to file an application with the Court, including an order to declare the agreement invalid and deal with the enforcement.
If the Agreement is overturned, then each party is free to apply to the court for a property settlement, like any other separated couple.
• Consent Orders
If both parties wish to obtain a higher level of security and formality, you may consider applying for Consent Orders.
What are Consent Orders？
Consent Orders are written agreements approved by a court.
You and the other party can apply for Consent Orders to be made without going to court. Consent Orders have the same legal effect as if they had been made by a judge after a court hearing.
Consent Orders about the property and financial orders may deal with:
• transfer or sale of property
• splitting of superannuation
• child maintenance and spousal maintenance
How do I apply for Consent Orders?
You can apply for Consent Orders either yourself or through a lawyer. It is important that all relevant documents are filed with the Court. Bendigo Mediation can provide you with a draft of consent orders, Heads of Agreement, balance sheets and considerations to make the next step as easy and straightforward as possible for you or your lawyer.
Is there any time limit for applying for Consent Orders?
You may file an application for a consent order any time after separation. But if you wish to seek orders from the court, it should to be filed within:
• 12 months of a divorce or
• 2 years since the end of a de facto relationship