Following the breakdown of a marriage or de facto relationship, you will likely need to divide any property (or financial resources) with your former spouse. In Australia, if you and your former partner agree on how your property should be divided, this can be formalised through a Consent Application to the Federal Circuit and Family Court of Australia (‘FCFCOA’) or a Financial Agreement (sometimes called a ‘Binding Financial Agreement’ or ‘BFA’). Each has unique benefits, and it is recommended you consult a legal practitioner to determine which is most appropriate for your specific circumstances.
A Consent Application to the FCFCOA has the same effect as any other court order – the parties approach the Court with an agreement and the Court will formalise the agreement as an Order, provided the agreement is within the range of outcomes the Court considers ‘just and equitable’ in the specific circumstances of the parties.
A BFA, conversely, is a private agreement, though can be enforced through an Application to the FCFCOA if breached. It is arguably a more onerous process, with rigorous legal requirements to ensure the agreement is ‘binding’ on the parties. Both parties are required to obtain independent legal advice before entering the agreement, meaning this approach is often more expensive than a Consent Application. However, a BFA can created before, during, or after marriage, which can be of assistance if parties are otherwise ‘out of time’ in the FCFCOA. It is also not subject to the Court’s review, providing additional flexibility to the parties when dividing their property.
Whether you are considering applying for Consent Orders or entering into a BFA, it is imperative you seek legal advice to ensure your rights are protected. Further, if you have separated from your spouse, it is important to remember the relevant time limitations for a Consent Application – within 12 months of a divorce being finalised for married couples, or within two (2) years of separation for de facto couples. While it is possible to apply to the Court for a property order outside of these timeframes, there is no guarantee an extension will be granted – so it is well worth applying within the time limits!
If you would like to discuss the best option for your specific circumstances, contact our team for a free initial consultation.
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