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Property and paperwork

Sarah Galvin

A common issue we are asked about is making an agreement with your ex legally binding. Everyone knows life involves paperwork, so no doubt there will be paperwork we need to do for this too?


Exactly right! property settlement, or dealing with any kind of asset, super or debt, involves paperwork.


This post is about what you need to do and some reasons why you should get it done sooner rather than later.



Why do I need to make our agreement legally binding?


You are not financially separated from your ex if you simply have a ‘handshake’ or informal agreement with them. They can still change their mind and seek more assets in property settlement right up until the time limit expires (and in rare cases, sometimes after that).


The time limit to bring a claim for property settlement is;


De facto: up to 2 years after separation


Marriage: up to 12 months after the divorce becomes final


If you have a Consent Order or Financial Agreement, then you have a final and legally binding property settlement. That will stop any future claims for settlement.

How can I get something legally binding?


There are two ways to do this;


Consent Order: an Order of the Court by the consent of both parties.


The Court has created a quick and simple process for agreements, so an Application for Consent Order can be dealt with within weeks. The Order will reflect the settlement you reached with your ex. It will not be like ordinary court proceedings, there will not be a hearing and you will not see the Judge. It is a paper only process. If the Court considers the Orders to be “just and equitable” (of fair) then they will issue the Order the parties prepared. This will be a final Order and be just as legally binding as any other Court Order.


Financial Agreement: a contracts between the parties.


You might hear them called “BFA’s” or “Separation Agreements” as well. One of the parties will have a contract drawn up to say how property settlement is taking place. Each person needs to have independent legal advice from separate solicitors at different firms on specific topics before signing the Agreement.


Other benefits


If your agreement involves transferring ownership in real estate from one party to the other, then you will be able to obtain an exemption from paying transfer duty (or stamp duty, for those of us old enough to remember paper the stamps office) if you have either a Consent Order or a Financial Agreement.


Is it worth the money?


Yes.


You will be financially separated from your ex. You can buy or spend whatever you like without fear that your ex will come back at you later for more;


These documents are not straightforward. Having a lawyer prepare the documents for you, and taking the time to get your property settlement finalised now, will save you a lot of time, stress and money further down the track.


More often than not, we find it will be much more difficult, stressful and costly to finalise your property division further down the track when your ex might not be so cooperative.


What next?


Call us to discuss these documents in more detail or book an Initial Consultation with us to start organising your property settlement

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