If your relationship is ending or has ended, then how you document the terms of your separation (which includes property arrangements) will fall under one of three types:

• You do not document the arrangements at all;
• You enter into an informal arrangement (which might be documented by you and your partner) which will deal with matters you consider to be important. Whilst being of some evidence of the parties intentions in any future dispute in a court, these documents will generally have no legal effect and are unenforceable.
• Formal legal arrangements which set out the terms you and your partner have agreed. These documents will usually be drawn up by your family lawyer.

There are generally 2 main types of legally enforceable documents.

So let’s look at the enforceable arrangements and work out what is best for you.

Court Orders

A Court Order is a document approved or made by a court.  The Order can include parenting and financial matters.

‘Consent Orders’ is a term which means that both you and your partner have agreed on the terms of the arrangements between yourselves. Once agreement has been reached, your lawyers will prepare the Consent Orders and associated documentation, have them signed by you and your partner and then have them delivered to the Court for sealing and issue.

Before this happens, your lawyer should explain the Orders to you in detail to ensure they mirror what you and your partner have agreed. Both you and your partner MUST be independently advised by your lawyers as to the effect of the Orders before the Court will approve the Orders although in certain circumstances if you do not want to have a lawyer review the Orders you can sign a waiver to receiving any legal advice- NEVER A GOOD IDEA.

There is no need for you to attend Court – the filing and sealing of the Orders is merely a procedural step.

If Consent Orders are not appropriate – you and your partner cannot agree on terms – then the Court will make Orders.  This will usually be at the end of an expensive Court hearing.

In these circumstances, you and your partner have relied on a Family Court Judge to determine matters between you and your partner based on the principles set out in the Family Law Act 1975 applied to the relevant facts of the matter.

 Financial Agreements

Often referred to as “Binding Financial Agreements”, this type of formal arrangement is in essence a contract between you and your partner and when drafted correctly, will be binding on both you and your partner.  As to whether a Financial Agreement is actually binding or not depends on compliance with a fairly strict set of rules which only an experienced family lawyer can help you with.  There are different types of Financial Agreements which can be made and which type is used will depend on your particular circumstances. Your lawyer will explain the differences to you and should know which one applies to your situation.

Financial Agreements can be used instead of Consent Orders.

Again, you and your partner MUST be independently advised by your lawyers as to the effect of the Agreement.

If you don’t want the formality of a Court Order and it is important that you maintain your privacy, as well as retaining flexibility in the agreed arrangements, then this is an option which you might wish to take up.

Legal costs should be considered.

A good lawyer will want to ensure that you spend your money wisely and will be happy to explain all of the options to you. It is important that you establish at an early stage what the competing cost options are, as the cost of a particular option may well determine which option is best for you.

Why not give the Fraser Coast Family Law Centre a call.  Don Gayler [Gayler Legal – 4124 7100] and Lesley Powell [Milburns Law 41254 6333] are both senior and experienced lawyers who can advise you on what is best for you – in the short, medium and long term.  If you are experiencing a relationship breakdown and need some sensible advice regarding parenting or financial matters, then don’t  wait until you feel overwhelmed and unable to cope – give either Don or Lesley a call and make sure that you get the sensible guidance you need to get you back on your feet and focused on a brighter future for you and your family.