Just Because You Agree You May Not Be Covered
One of the golden rules in property settlement is that, once you have done the hard work of reaching an agreement for division, you should if at all possible – document it. But, beyond the documenting process there is another important consideration and if it’s not addressed the court won’t accept your agreement. Your agreement should be documented by way either a of financial agreement or a consent order. There are many advantages to doing this, including;
- You make your own decision.
- You greatly reduce the financial and emotional costs of legal proceedings.
- Your continuing relationship as parents, (if you have children) is likely to work better.
- You are able to move forward and make a new life for yourself, and
- You may improve communication with your former partner and be better able to resolve disputes in the future.
The additional requirement of your documented agreement is that it needs to be ‘just and equitable.’ This concept may seem vague, but the court has recently considered the point.
For a Registrar of the court to make orders on a final basis regard must be had to the ‘just and equity’ of the property division. If the court has some concerns about the fairness of a division typically a Registrar will in the first instance issue a Notice of Requisition to the parties and seek further particulars from them to be satisfied about the agreed division.
In this recent case, the Registrar did exactly this but even after that had happened was still not satisfied so referred the Application for Consent Orders to a Judge for determination. The Judge although satisfied that it was ‘just and equitable’ to make an adjustment of the party’s assets and liabilities, was not satisfied (due to a lack of information before the court) that the division proposed was just and equitable and so the application was dismissed.
Getting advice from a specialist family lawyer early on in negotiations with the other party is essential as it will potentially save time and unnecessary expense if at the end of those negotiations the court is not prepared to make the adjustment on the basis that they determine the division not to be just and equitable.
At Michael Lynch Family Lawyers, we can assist you with your property settlement documentation and navigate you through this process and give you confidence and peace of mind.
We take a personalised approach with each matter and can assist you either in person, over the phone or by Skype.To speak with one of our experienced family lawyers, please contact our Brisbane office today. Call us on (07) 3221 4300 to organise a no-obligation initial appointment at a fixed-cost.
