Q & A - Divorce & Family Law

Q: Can the Court enforce the terms of a Financial Agreement or party’s obligation to pay money under a Financial Agreement?

Yes, however, you must first seek a Court Order in relation to the validity of the Financial Agreement.

The question of whether a Financial Agreement is valid, enforceable or effective is to be determined by the Court according to the principles of law and equity that are applicable in determining validity, enforceability and effect of contracts and purported contracts, and in proceedings relating to such a Financial Agreement.

If a Financial Agreement is found to be enforceable, it can then be enforced as if it were an order of the Court.

Q: If a Divorce Order has already been granted, what are the alternatives to entering into a Financial Agreement?

Former Spouses can decide to enter into Consent Orders instead of a Financial Agreement. Each party must seek their own independent legal advice about each option and weigh the advantages and disadvantages of each alternative.

Unlike Financial Agreements, Consent Orders must be filed with the Court for its consideration, and will only be approved if it is satisfied that the proposed Consent Orders are “just and equitable” and will consider all matters disclosed in the accompanying Application for Consent Orders. An Application for Consent Orders will include all usual matters that form the “4-Step Approach” and will consider factors such as the asset pool of the parties, their liabilities, the proposed division as well as each party’s financial and non-financial contributions such provision of childcare and homemaker duties, during the relationship.

Importantly, an Application for Consent Orders must be filed within 12 months from the date that a Divorce Order becomes final, otherwise you will need to seek leave (permission) from the Court before the Application can be filed. Similarly, an Application for Consent Orders made by a former de facto couple must be filed within 24 months from the date of separation, otherwise you will need seek leave from the Court.

Q: Can Financial Agreements be set aside by a Court?

Yes, if the Court is satisfied that any one or more of the prescribed events occurred between, or by either party of the Financial Agreement.

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