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How Property Matters are Finalised in Family Law

It is important that property matters are finalised in a way which is binding otherwise either party can resile from the agreement and seek the involvement of the courts.

There are three ways to make the arrangement binding:

If by agreement then Consent Orders or a Financial Agreement would be applicable; if not by agreement, then there will be Orders following a trial. Read more on these options below.

Where parties reach an agreement, this can be drafted into Orders which are then filed with the Court along with a document called an Application for Consent Orders. The Registrar at the Court will consider the proposed Orders and if they are considered ‘just and equitable’ they will be ‘sealed by the Court’ and thereafter they will become binding and enforceable through the Court.

The Application for Consent Orders contains the information which the Registrar of the Court requires to determine whether the Agreement reached is ‘just and equitable’. When you use a lawyer to assist with your matter they will ensure that the agreement you reach will be considered ‘just and equitable’ and therefore that the Orders will be made by the Court.

A Financial Agreement is a binding document signed by both parties after receiving independent legal advice. It is enforceable through the courts but it is not usually advisable to use one in circumstances following the breakdown of a relationship as they are less certain than Consent Orders. The reason that they are less certain is that there are more situations in which their validity can be challenged than Consent Orders. One example s that it could be claimed that the legal advice received was wrong or inadequate and therefore the Orders should not be binding.

Financial Agreements are sometimes used where one party agrees to enter into an arrangement which would not be considered ‘just and equitable’. In these situations, it is possible that the Registrar might refuse to make the Orders as proposed without further investigation which would increase the legal fees of the parties. In circumstances where the agreement might be considered disadvantageous to one party it might be advisable to enter into a Financial Agreement as opposed to Consent Orders.

Where the parties have exhausted all avenues of dispute resolution and failed to reach an agreement, then a trial will need to take place before a Judge who will make Orders that he or she deems appropriate. It is actually quite rare that a matter will go to trial as the reality of the situation usually puts sufficient pressure on the parties that agreement is reached. These realities are the legal fees, emotional toll and time delay involved in taking a matter to trial.
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