Friday 29th April 2022 from 9am

Wills & Estates Senior Associate Debbie Sage will join Robyn Hyland to talk about the importance of planning for end-of-life care and what options are available.

Recently Separated? What you need to consider next


Attwood Marshall Lawyers Family Lawyer, Emily Edmonds, discusses what to do if you have recently separated from your spouse or partner on Radio 4CRB. It is important to understand your rights and obligations as you navigate separation and this significant change in your family circumstances.

What to consider after separation

The breakdown of a relationship is never an easy thing to deal with – even if the decision to separate was a mutual one. A relationship coming to an end can be a stressful and emotional time for everyone involved; there is a lot to sort out. Often people don’t quite know what to do next as their whole world has changed. For many people, when they first separate their attention goes to what is tangible, dividing their personal belongings, and discussing things like jointly owned property. Many people consider coming to a mutual agreement of how best to divide their assets themselves in an attempt to save time and the perceived costs involved with engaging a family lawyer to assist. This tends to be a common approach if the couple are still on good terms with each other.

What most people don’t realise, however, is that there are quite a few reasons why it is important that you get legal advice from an experienced family lawyer before you make any agreements or decisions or begin negotiating with your former partner.

The importance of finalising matters in a legally binding way after separation

When it comes to dividing property or making arrangements for your children, many people think that they do not need to address these issues in the legal arena and can simply work the details out between themselves informally. The sad reality is that without a legally binding agreement in place, each party is leaving themselves open to a situation where the other can make a unilateral change in care arrangements for the kids or ‘go for more’ later on as far as finances or a property settlement are concerned.

There are two ways to document a property settlement in a legally binding way.

Option 1: Application for Consent Orders

An Application for Consent Orders involves one party having their solicitor draft the documents, which will then be sent to the other party to review and sign.

Whilst it is always recommended that both parties obtain their own independent legal advice, with this option it is not necessary to have a solicitor sign off on the documents. Once signed by both parties, the Application and proposed minutes of consent are sent to the Family Court to be considered by a Registrar. The Registrar will then make the orders sought by the parties, if it is deemed that the agreement is just and equitable.

If a Registrar can see that the documents have been prepared by a solicitor and at least one party has obtained legal advice, they are generally more likely to make the orders sought.

Option 2: Binding Financial Agreement

If a couple chooses to document their agreement by way of a Binding Financial Agreement, both parties will need to obtain independent legal advice and have their respective solicitors sign certificates confirming that this advice has been provided.

A Binding Financial Agreement does not have to be approved by the Court. Once it has been signed by both parties and their solicitors, it is considered final. This can be a useful way to reach an agreement on your own terms without the involvement of the Court.

As far as time limits are concerned, if you were married, you have one year from the date that your divorce order came into effect to seek a property adjustment. If you were in a de facto relationship, you have two years from the date of separation.

By formalising a property settlement in a legally binding way, whether people choose to do so by way of an Application for Consent Orders or Binding Financial Agreement, you can have peace of mind in knowing that your former partner cannot change their mind or seek further support or assets if their circumstances change in the future.

Anyone’s circumstances can change quickly. When people enter new relationships, or if their financial situation changes as time goes on, the mutual agreement you originally reached together may not hold the same value. It is for this reason why it is so important to ensure property settlements are documented properly as no one knows what the future holds.

Financial benefits if you document your property settlement in a legally binding way

When it comes to the transfer of property, if the transfer is pursuant to a Binding Financial Agreement or a Court Order, no stamp duty is payable on the transfer and there can also be capital gains tax advantages.

These are the types of benefits many people may not consider when they try to go it alone and make informal agreements without the help of a legal professional.

Separation and children

When a couple separates, they may focus on getting the property side of things sorted first and foremost. They tend not to worry about parenting matters immediately, other than making initial arrangements regarding who the children will live with on which days. With everything else going on, it’s easy to forget other issues that can arise as far as children are concerned.

Once a couple have separated, it’s important to consider not only who the children will live with, but also issues such as schooling, special days and events, medical needs, and travel just to name a few. When it comes to documenting parenting arrangements, there are two ways this can be done, however only one is legally enforceable.

Parenting Order by way of an Application for Consent Orders

The recommended course of action to document a parenting arrangement after separation is to seek a parenting order by way of an Application for Consent Orders. Consent orders usually set out who the children will live with and spend time with, and outline a comprehensive list of parental responsibilities and expectations moving forward. Once the Court has made the orders, the couple then have a legally binding document. This means that if one party decides to ignore the orders, it will be considered a breach and the other parent will have several options available to them in terms of enforcing the orders.

Parenting Plans

A parenting plan is not legally binding which makes it very different to a parenting order. With a parenting plan, if one party decides to disregard the agreement, there are no legal repercussions or consequences for this behaviour. A parenting plan is still better to have in place than nothing at all. However, if a parenting order commences proceedings in the Federal Circuit Court or Family Court seeking orders that mirror an agreement set out in a parenting plan, the Court will consider the terms of the parenting plan when making orders.

We have many clients come to us requesting parenting plans because they are under the impression that court orders are too strict and don’t allow parents to be flexible in their arrangements, but this isn’t the case.

Orders can be drafted so that all parties are still able to do things by agreement, but then failing agreement, the order will provide for what is to happen as a result of the breach.

How can Attwood Marshall Lawyers help?

Attwood Marshall Lawyers have a dedicated Family Law team who practice exclusively in family law matters. The team are well-versed at assisting clients with Parenting Orders and Parenting Plans to ensure all aspects of a child’s care are considered and their best interests protected.

Our family lawyers can help you document your financial and parenting matters in a legally binding way. This will ensure all parties are comfortable and clear on the arrangements, mitigating the risk of any disputes arising.

We can help you understand your rights and obligations and guide you through this change in your family circumstances in a way that can help everyone involved move on as quickly and peacefully as possible.

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The contents of this article are considered accurate as at the date of publication. The information contained in this article does not constitute legal advice and is of a general nature only. Readers should seek legal advice about their specific circumstances. 

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