Going to court is usually a stressful experience for all involved. It is best to avoid going through the Family Court of Western Australia process if possible. Instead, you and your partner reaching an agreement about how your joint property is to be split is the best thing you can do.This can be done through an informal agreement, consent orders or a binding financial agreement.
Let’s explore each of those 3 options:
Time Limits & Why They are Important
First, it is important that you are aware of certain time limits that apply.
In the case of married couples, there is a 12-month time limit from the date of divorce to apply for court orders at the Family Court of Western Australia.
For de facto couples, there is a 2-year time limit from the date of separation to apply for court orders at the Family Court of Western Australia.
Why is this important? Well, if you can’t reach an agreement with your ex-partner, then you may be forced to commence court proceedings (as a last resort) to get what you are legally owed.
If you fall outside the above time periods, then you may miss out and may not be entitled to claim anything.
Option 1: Informal Agreement
If you and your partner have come to some sort of agreement about property division between yourselves, this is a great first start. In some circumstances, both parties are amicable and can make this arrangement work.
It’s important to remember that with an informal agreement, even if it’s in writing, it is not legally binding and either person can change their mind later!
If something goes wrong or someone changes their mind, either one of you can just go to court and claim more than what was agreed.
The best way to protect your interests, both now and in future, is to convert this informal agreement into consent orders or a binding financial agreement (both further discussed below).
Another important point to consider is stamp duty obligations. If property is transferred pursuant to an informal agreement, you will be expected to pay the full amount of stamp duty, which is usually thousands of dollars.
However, if you prepare consent orders or a binding financial agreement, stamp duty will typically be a reduced to $20.
Option 2: Consent orders
Consent orders are a written agreement that must be approved by the Family Court of Western Australia.
They are used when you have reached an agreement and want the court to turn it into formal orders. When the consent orders are made and approved, they have the same effect as if the court made those orders at a hearing.
Before the court will approve consent orders regarding your property agreement, the agreement will be scrutinised to see if the division is ‘just and equitable’ to both parties.
To assess this, the court will look at contributions to the relationship made by both parties as well as each person’s current and future needs.
If you want to vary consent orders in the future, proceedings need to be initiated in the Family Court of Western Australia. This is discussed below.
Consent orders simply involve completing some paperwork and filing it with the court. They take a few months to approve. No court attendance is required.
Consent orders are the most common way of making your agreement legally binding.
Option 3: Binding financial agreements (BFAs)
Another option for when an agreement has been reached between you and your partner is to turn the agreement into a BFA.
The main difference between consent orders and BFAs is that BFAs are not scrutised by the Family Court of Western Australia as to whether they are ‘just and equitable’ in the way consent orders are before they are accepted.
Another difference is there is a strict legal requirement that both parties to a BFA obtain independent legal advice. However, with consent orders, this legal advice is optional. Even though it is optional, we recommend seeking legal advice.
Each party’s lawyer is required to provide a certificate of independent legal advice which is annexed to the BFA.
We generally recommend completing consent orders unless there are special circumstances.
What To Do If You Can’t Reach An Agreement?
If you cannot come to an agreement with your partner, the next best option is to go through dispute resolution.
The most common dispute resolution methods are negotiation and mediation.
These methods can be helpful in assisting you reach an agreement. In fact, it is required that you attempt dispute resolution before you go to court unless you are exempt due to a limited number of circumstances such as fraud, urgency or family violence being present in your case.
It is up to you and your partner which form of dispute resolution you wish to utilise. If dispute resolution is successful and you come to an agreement, you can either convert this to consent orders or a binding financial agreement.
If not, it may be time to exercise the last option, applying to the Family Court of Western Australia.
If all other options have been exhausted and an agreement still can’t be reached, the last option is to take your case to the Family Court of Western Australia and to let the court to decide your property division for you. It is possible to represent yourself in court, but legal advice is certainly recommended.