It’s the phrase we hear all too often. However, reaching an agreement with your former spouse before knowing how the law applies to you can be catastrophic.
Why? Because you don’t know what you don’t know.
It is a common misconception that getting advice from a family lawyer after separation is not needed when people are amicable or that it will always lead to conflict and Court battles. This is simply untrue. In fact, we would estimate that at least 85% of our cases are amicable separations.
People only ever hear about the horror story breakups. Not that Jack and Jill each received legal advice, were able to sort out an agreement that worked for the both of them, and move on with their lives.
Why can’t we just agree without getting legal advice?
If you want your agreement to become a formal and binding Order, you must apply to the Court for ‘Consent Orders’.
Unfortunately, we have seen many cases where people have informally agreed to something that they should not have. For example, when people agree to divide the property or parenting arrangements for their children that are well above or well under what they are entitled to. Another common problem is where people agree to something that will never work practically.
In our experience, the separated couple will spend more money and experience emotional cost that could have been avoided.
What should we do after separation?
We recommend that each party meet with a lawyer to receive initial legal advice when they are ready to do so after separation, and before discussing an agreement.
No, it’s not because we want to make money or increase conflict; in fact, it’s quite the opposite.
Rather, the meeting will inform people about their rights, responsibilities and options available to them. The separated couple will as a result have a much greater chance of reaching an agreement.
So, what if we reach an agreement after receiving legal advice?
You and your former spouse should record your agreement about any of the following issues in Consent Orders:
– the division of property (otherwise known as property settlement);
– spousal maintenance; and/or
What are Consent Orders?
When a separated couple reaches an agreement about the above issues, Consent Orders are a collection of legal documents that are prepared by lawyer(s) to formalise that agreement. The documents will set out your agreement as well as your personal and financial details so the Court can consider if the agreement is fair and workable.
You and your former spouse can apply for Consent Orders without either of you (or your lawyers) ever having to physically attend Court.
Instead, Consent Orders will be filed in the Court. You will be notified that the Consent Orders are approved when the Court posts a sealed Order to you (or your lawyer).
What are the benefits of Consent Orders?
Consent Orders are almost always the most cost-effective option.
Another added benefit of using Consent Orders is that there are exemptions to paying duty on transfers of assets between spouses.
You and your former spouse will have a legal obligation to follow the agreement in the Consent Orders. Without Consent Orders, your former spouse can chose not to obey the agreement at any time without consequence.
Consent Orders will formalise your separation. This will ensure that your former spouse cannot come back in the future and try to change the agreement, unless in extraordinary circumstances.
What will it cost me to get Consent Orders?
It will depend how complex your case is. We will be able to provide you with an estimate of costs as part of the initial legal advice.
At Martens Legal we offer a fixed fee initial meeting of $300 including GST.
Would you like further information?
By Tegan Martens, Principal Family Lawyer
The information contained on this site is for general guidance only. No person should act or refrain from acting on the basis of such information. Appropriate professional advice should be sought based upon your particular circumstances.