Surviving Your Divorce: Chapter 6- Consent Orders and Binding Financial Agreements

Once you have a deal that you can both live with, it will need to be reduced into either Consent Orders or a Binding Financial Agreement (BFA).

Any arrangement that you make that is not sealed by the Court in Consent Orders or a BFA is not binding.  Your Ex can therefore renege on the deal at any time.  Worse still, you Ex may make this deal, take the benefits and, at a later stage, make a further claim for more.  This, obviously, is not an outcome you want.  It’s something that must be guarded against. Any deal you do must be able to be relied upon.

This might seem like an unnecessary delay or expense, but it is often the best time and money spent, as, at a later stage if there is any argument, the Orders can be produced to settle that argument. 

In many cases the matter can be resolved by either Consent Orders or a BFA.  Each has its benefits, and you should take advice from your Lawyer as to which one suits. 

BFA’s are relatively new, and were designed to be a simple way for the parties to by-pass the Courts, and avoid the necessity of filing fees and documents. 

In practice however, BFA’s have proved to be difficult to create, and far more costly than Consent Orders because recent Court decisions have indicated that if they are done incorrectly, they are not enforceable at all. 

Many people and their Lawyers have taken the view that having the Consent Orders, with the Court seal on them, avoids any argument about whether the arrangement is enforceable.  There is always a risk that the court may not approve the deal, even if both of you agree.  Hard to believe but true and more common than you might think.

The court has a duty to look at the orders you submit and ensure they appear even handed and comply with all the principals in the Act.  This often doesn’t take into account the intricate details of your life and your views.  Unbelievably, it is common for a court to look at the deal agreed to and ask questions, sending the orders away several times, regardless of the agreement made.

A BFA avoids this.

You should always ask for a plain English explanation of each option, and advice as to why one or the other suits your individual circumstances.

1.         HOW DOES A BFA WORK?

A BFA is essentially a signed agreement between the two of you, which does not have to go to Court.  Having said that, there is a significant amount of work that goes into creating the BFA, to ensure that it complies with the very strict guidelines set out by the Parliament for an enforceable BFA.  You do not want to have to go through all that and find your Ex reneges and it’s not enforceable after all.  If a BFA is done properly the parties can sign it, exchange copies, and the matter is over. 

This avoids any delay caused by the Court process. 

There are difficulties however:-

(i)            An enforceable BFA involves creating a significant amount of material.  All this material creates an opportunity for you and your Ex to have yet another argument about whether those facts are true. 

(ii)        In the event of a dispute later, one or other party will almost always argue that the BFA is not enforceable because of some technical infringement.  This will necessitate a return to Court to have that argument, at far more cost than would have ever been involved with Consent Orders. 

            In the light of recent Court decisions striking down BFA’s on technical grounds, their usefulness is coming into question. 

2.         HOW DO CONSENT ORDERS WORK?

Consent Orders are a short cut to having an enforceable agreement.  In essence, Consent Orders involve filing an Application with the Court, but at the same time, filing the Terms of Agreement the parties have already reached.  These documents are signed by both parties, and after some limited examination by the Court, are usually sealed.  That is the end of the matter.  There is no Court appearance, unless a court registrar refuses to seal the order, and a sealed final Order is simply issued to both of the parties. 

Occasionally, the registrar of the Court will ask a question or require an amendment, and in some cases will refer the matter to a judge or require the parties to list it for determination, but the Court, despite its obligation to look at whether the deal complies with the Law, is usually reluctant to interfere with an arrangement that both of the parties feel is appropriate. 

Surviving your Divorce: Chapter 5- De Facto Relationships

Because Australia was first a collection of States each with their own laws, and in 1901 became a nation, with the States giving certain responsibilities to the Commonwealth, there has been a loop-hole in the administration of the law relating to couples, for many years.

The laws relating to “marriage”, were given by each State to the Commonwealth in 1901.  The laws in relation to unmarried couples weren’t.

In the early 90’s this was rectified by the States giving this jurisdiction voluntarily to the Commonwealth.  Unfortunately the High Court ruled that is was not done correctly. 

This meant that State Court, which was ill-equipped to deal with de facto couples, had that jurisdiction thrust back upon them.

This has now been rectified again, correctly and permanently, in 2009, with the practical effect that de facto relationships are now dealt with by the Family Court, as they should always have been.

What this means is that, if you are in a de facto relationship for the required period of time, (two years currently), then the rules relating to you and your ex will be the same as if you had been married.

Unsurprisingly, this is a new area of the law and even the most basic items are often disputed.  Even the issue of whether a relationship exists is the cause of heated debate in many cases.

Surviving your Divorce: Chapter 4- Divorce (Dissolution of Marriage)

The word “Divorce” covers a whole range of things, so far as the general public is concerned. 

In fact, in legal terms, a divorce is only one small (and often irrelevant), part of the process. 

A dissolution of your marriage (the technical expression for a divorce), is in effect, the undoing of the marriage ceremony itself, allowing you and/or your Ex to remarry. 

The vast majority of people don’t worry about this process, and don’t bother with a dissolution of marriage.  It can be costly (over $3,000.00 by the time the filing fee and other fees are paid), and really doesn’t assist you unless and until you are going to line up again for marriage, or unless there is a tactical advantage in a property settlement dispute.

Some people see it as a formal step to be taken, to obtain the satisfaction of knowing that, “it’s over”, and they can commence their lives again. 

Others take the view that finding the Ex at a later stage to undertake a dissolution might be difficult, and that it is “better to get it over with now”. 

Sometimes, there is a benefit to be gained from a divorce.  Occasionally, if you have the right circumstances, a divorce can gain you a major benefit.  A divorce starts a time limit running on division of property.  You must start court proceedings for division of property within 12 months of a divorce.  If that action is not started then the property will be divided along the lines of their ownership on titles or if owned jointly, will be fifty/fifty.

You can see how, in some circumstances, this would be to the advantage of one party or the other. 

1.         WHAT IS REQUIRED FOR A DISSOLUTION?

The only major requirements for a dissolution of marriage are:-

(i)            Twelve months of separation; and

(ii)           That suitable arrangements have been made for any children involved.

You will also be asked to dig out your old marriage certificate. 

An Application is then made to the Court.  Usually there is no need for you to appear on the Court day. 

At that Court return date, all being well, the Court will issue a “Decree Nisi”.  This is a provisional Divorce Order.  There is then a period of thirty days for objections, after which the Decree Nisi becomes absolute, and you are free to remarry at any stage after that time. 

Strangely enough though, disputes occur. 

The most common dispute revolves around the separation period and when separation first occurred. 

Given the nature of relationships, pinpointing this date could be rather difficult, and is often the subject of bitter argument. 

Short periods of reconciliation are allowed and are taken into account when calculating the twelve months of separation. 

Interestingly, the parties can also be “separated under the one roof”.  That is, separation does not need to be marked by one party leaving the house. 

It is not uncommon for separations to occur gradually, where one may in fact leave the main bedroom, or where the relationship breaks down without anyone changing address. 

There are fairly well established rules for determining when separation has occurred under the one roof, and this may start the twelve months separation period early, allowing divorces to be obtained sooner.