Any agreement between you and your former partner should be formalised in writing. In relation to property matters, this may involve either a Binding Financial Agreement (BFA) or Consent Orders.
The difference between the two options is that a BFA is not filed with the court. However, it does require each person to see a solicitor for independent legal advice. Further, for that solicitor to sign a certificate that they have given the necessary advices in relation to the meaning and effect of the BFA.
The Consent Orders are filed with the court and require payment of the Court filing fee. Each person does not need to have received advices from a solicitor in relation to the agreement, however this is recommended at C + K Family Lawyers. You will need to make sure that the terms of settlement are within the range of a ‘just and equitable settlement’. Also, that the documents to be filed with the court reflect in full the agreement that you have made. For example, has the other person either refinanced or indemnified you in relation to a liability that it is agreed they will be responsible for?
The advantages of formalising your agreement using either a BFA or Consent Orders are that you will avoid having to pay stamp duty on the transfer of an interest in property between spouses. This can represent a significant saving. Also, property matters between you both are legally binding and enforceable such that neither person can make a further claim against the other person in the future. This means that you can move forward with certainty knowing that what you have retained in the settlement is yours and that any assets acquired later are not able to be the subject of a future claim.
(Of course there are exceptions to the finality of terms of settlement that have been formalised in writing. For example, where there is fraud, duress or failure to disclose assets and the like, an agreement may be overturned).
We offer fixed fees in relation to both Binding Financial Agreements and Consent Orders.
So if you have an agreement and would like to discuss which option best suits your circumstances, please call our office on 3161 2762.
