Drafting Agreements

You may have used a Family Dispute Resolution service such as Relationships Australia  or Centacare or used a tool such as Amica but now need the agreement drafted by a lawyer.

Perhaps you started to DIY your own Consent Minutes of Order but the process became too time consuming. We often have clients come to us after they have filed the documents with the Court themselves however the documents have been requisitioned and need to be re-drafted.

Did you know that you cannot split superannuation without a Binding Financial Agreement or Consent Minutes of Order? There is also no guarantee of a Stamp Duty or Capital Gains Tax exemption on property transfer if you do not have your agreement written up properly. If you do not formalise your property settlement then you an also leave yourself open to a future claim from your ex partner – unfortunately we see this happen frequently!

The majority of clients will be able to formalise their property agreements via Consent Minutes. This sets out exactly how property is to be divided, transfer of any titles, sets out any superannuation splitting and also details any debt or mortgages. It ensures neither party can come back at a later date for more ‘piece of the pie’ even if there have been family inheritances or lotto wins. The Consent Minutes and supporting applications are registered with the Court without the need for any court hearings. A Registrar of the Court will consider the application and will put the court seal or stamp on it so that it has the effect of a legally binding Court order. The Registrar must be satisfied:

• That there has been transparency between the parties and financial ‘disclosure’/document exchange
• That the agreement reached is one that considers the ‘4 Step Process’ (you can find more information about the 4 Step Process in our FREE downloadable eBook)
• That the agreement is fair and equitable

In some rare cases we will recommend a Binding Financial Agreement. That is usually in matters where the agreement reached between the parties is one which would not be approved by the Court because it sways heavily in favour of one party. The laws in relation to Binding Financial Agreements are very strict and they need to be drafted by lawyers and witnessed by two independent law firms.

A Parenting Plan sets out the living arrangements for children. It also sets out who is to have parental responsibility and how much time the children will spend with each parent. A Parenting Plan can also set out time arrangements during school holidays and special occasions. It can outline what will happen for medical emergencies, where changeover will take place and how the parties will communicate with each other.

Did you know that a Parenting Plan is not legally binding? That said, it can be a good tool for those who have separated on an amicable basis and are confident that there will be compliance by the parties.  Often we advice clients that there is no need to go to the additional expense of formalising their agreement with the Court because the communication and co-parenting between the parties is quite good.

The alternate option is Consent Minutes which are registered with the Court. They can be a good option in circumstances where you have concerns that your ex partner may not stick to the agreement or you want certainty to lock in your agreed time with the children.

Consent Minutes of Order and the supporting application set out all of the above arrangements which are then submitted to the Court. If the Court considers the agreement in the children’s best interest then they will put the court seal (stamp) on the document so that it has the effect of a legally binding Court order without having to go to any Court hearings.