Once you have separated, it is extremely important to separate your assets as soon as possible.
It is a common misconception to believe property settlements are 50/50. In fact, no two matters are the same and the Family Court rely on a multitude of factors when determining an appropriate property split.
Upon separation, there is generally two options to legally separate assets to protect them from a future dispute.
Consent Orders
Consent orders are a legally binding document, which are submitted to the court to determine whether the proposed division of assets is “just and equitable”. You do not need to attend court.
Consent orders require both parties to agree and consent to the proposed division and sign accordingly. If you cannot agree, you can apply to the Court to make orders.
This division of assets can include but is not limited to:
- Transfer or sale of real property;
- Split of superannuation;
- Spousal/de facto maintenance;
- Joint bank accounts, credit cards or loans;
- Contents;
- Transfer of vehicles; and
- Who is to retain the family pet
Once these documents have been finalised by the court, they can only be changed in limited circumstances. A breach of consent orders can have serious consequences, including being found in contempt of court in extreme cases. If you have questions about the implementation of orders, you should seek legal advice from a professional family lawyer.
Binding Financial Agreement (BFA)
A BFA is a contract between two or more parties where, if entered into properly, can be a way to ‘contract out’ of court proceedings. Therefore to be binding
A BFA is available for couples that are married or de facto and can be entered into at the beginning of a relationship (pre-nup), during a relationship or at the point of separation.
A BFA allows for clarity as to what will happen to assets of the parties at the point of separation.
The Court has power to set aside BFA’s in some circumstances, therefore it is extremely important before entering into a BFA, to get independent legal advice.
Each party to a BFA must receive independent legal advice by an Australian legal practitioner before entering into the Agreement.
** All information is general in nature. Call us today for tailored advice to protect your assets.