Making sure the agreement you reach with your former partner is final and binding—so there can be no second bites of the cherry!
Perhaps you are in the process of negotiating a property settlement with your former partner, or maybe you have already reached an agreement about how to divide your property—now you need to make sure that the agreement is forever.
How do I formalise the co-parenting agreement reached?
You might not realise that a final agreement is not actually ‘final’ at the time the agreement is reached.
You may have verbally agreed to resolve your matter, and you may have put that agreement in writing. However, your agreement is not binding or enforceable until you formalise the agreement with:
- A Consent Order; or
- A Binding Financial Agreement.
You might have reached an agreement, but the deal is not done until you have a formalised version of one of these documents.
There are pros and cons associated with entering into either a Consent Order or a Binding Financial Agreement. Your lawyer can advise you about which document will suit your situation.
What if I do not formalise the co-parenting Agreement reached?
There are some big risks associated with not properly formalising your agreement into a binding document.
First, just because you reached an ’agreement’ doesn’t mean your former partner cannot make a future claim against you seeking a contested property settlement. In other words, even if you write down your agreement, sign it, or even have it witnessed, your former partner may still be able to claim against you in the future.
There are time limitations for parties making claims against their former partners for property settlements or spousal maintenance.
For de facto couples, this time limitation is two years from the date of their final separation. For married couples, the time limitation is twelve months from the date their divorce becomes absolute. If you:
- Fail to bring an application to court seeking contested orders prior to the time limitation expiring; or
- Fail to properly formalise any agreement reached before the time limitation expires (by way of an Application for Consent Orders or Binding Financial Agreement); then
It may mean that any proceedings to be filed in the Federal Circuit and Family Court of Australia could become statute barred, and you may lose your right to bring such an application. If your time limitation expires, you will need to satisfy the court as to why leave should be granted to allow a property settlement to occur out of time. It is always best to properly formalise any agreement reached. Doing so is essentially your insurance policy against a future claim being made against you. Just as you insure your home and your car, you should insure yourself against a further claim being made on your property by entering into a Consent Order or a Binding Financial Agreement.
Any advice is general in nature, may not apply to your specific situation and must not be relied upon as legal advice. In instances of family law, situations should always be evaluated on a case-by-case basis. As such, we always recommend you seek specific advice tailored to your circumstances. Please feel free to get in touch if you would like to discuss your matter.
