In Australia, these documents are formally known as a Binding Financial Agreement, but are often referred to as a ‘pre-nup’ or ‘pre-nuptial agreement’. Binding Financial Agreements set out what is to happen in the event that the relationship breaks down in the future, and can sometimes also contain provisions about what is to happen during the relationship. This agreement does not require going to Court or submitting any documents to the Court.

Binding Financial Agreements require both parties to have (separate) lawyers to give them advice and sign the document.

Parties can elect to document an agreement one of two ways – through Consent Orders, or through a Binding Financial Agreement.

Consent Orders

Consent Orders can be filed in the Court after a relationship has ended. These documents set out the circumstances and agreement about property matters and/or children’s matters. It does not matter if the parties were in a de facto relationship or married (and for parenting matters, it doesn’t matter if the parents were in a relationship). The parties are not required to go to Court, and the judicial officers will consider the matter just based upon the documents filed.

The Court requires that parties file at least two documents – an Application for Consent Orders and a document setting out the terms of the agreement (the Orders that are proposed to be made by the Court). Depending on the circumstances other documents may be necessary. The Court has quite a lot of useful information about Consent Orders on its website.

We always recommend that you at least get some initial advice and, whenever an agreement is reached, that you get legal assistance in drafting these important documents.

Binding Financial Agreement

A Binding Financial Agreement can also be entered into after a relationship has ended to document an agreement about property matters. Similar to the information above, Binding Financial Agreements require both parties to have separate lawyers, but does not involve going to Court or submitting documents to the Court.

We can assist you before, during and after entering into a Binding Financial Agreement. Make an appointment to talk with our Family Law Solicitor today.

Property settlement refers to finalising who receives what assets, liabilities and superannuation after a relationship has broken down. Nowadays, the Family Law Act provides for property settlement between both married couples and parties to a de facto relationship (including either married or de facto same-sex couples). Most commonly this involves adjusting parties’ interests in houses, cars, debts and superannuation. But property settlements also include dealing with more complex matters involving corporate entities, Trusts and self-managed superannuation funds.

Maintenance of a former partner, or for an adult child, is where one person is considered to need additional assistance to meet their personal or living expenses, or the expenses relating to an adult child (but this only applies in special and limited circumstances). If it is considered that their former partner has capacity to pay, then the former partner will make a periodical or lump-sum payment towards the expenses of the other person.

Maintenance of a former partner, or an adult child, is separate from a person’s obligation to maintain their child – which is known as child support in Australia.

Family law parenting matters involve formalising the parenting arrangements for the children after separation. This can be done with various levels of formality from an ad hoc agreement, to a Parenting Plan or more formal Court Orders (either by consent or after litigation).

However, matters involving children can also include issues like time with grandparents or other family members, as well as issues such as interstate or international relocation, surrogacy, IVF or other issues.

Alternate dispute resolution is a compulsory step (with exceptions) for all parenting matters, and is very highly recommended in property and other family law matters. It is an opportunity for parties to participate in a facilitated discussion (oftentimes from separate rooms) to try to get them to narrow the issues and, hopefully, to reach an agreement.

Some alternate dispute resolution process are done without solicitors (such as through Relationships Australia or other government funded programs), but if you are intending to commence alternate dispute resolution or have been invited to attend by the other party, we recommend you get some legal advice by talking to us today.

Where parties can’t reach an agreement, or there are circumstances that mean that it is inappropriate to engage in alternate dispute resolution, Court action may be required. If this is the case for you, we can help you navigate the legal system and will advocate on your behalf. Starting Court proceedings may be necessary in some circumstances, and usually involves a judicial officer making a decision and thus making Orders about interim issues and then about final issues.

If you need to start or respond to Court action, talk to us today.

Divorce is the process to formally end to a marriage and thus allow parties to remarry. However, divorce does not finalise any of the other aspects of a relationship breakdown (property, parenting or maintenance issues).

Whilst the Family Law Act doesn’t encompass the below things, these issues still often arise in family law matters and our family lawyer can help you with the following:

• Adoption matters for all couples
• Domestic violence matters for all couples
• Child protection matters.