How to formalise your property settlement by consent
Hi, my name is Allysha Jane Merrett. I’m a family lawyer at Turnbull Hill Lawyers. I’m here today to talk to you about how to formalise your property settlement by consent. You’re probably tuning in because you’re either separated or you’re thinking about separating, and you want to know how to make things formal; then I’m here to help.
So there’s several advantages to formalising a property settlement by consent. So one is that you maintain real control over how you formalise your property settlement and you’ve also got a better chance at maintaining that parental relationship with your former spouse if you’ve got children.
So there’s two ways you can do it, one is consent orders. Consent orders involve an application to the court and minutes of order but nobody attends court.
We draft consent orders in an application, and you and then separately former spouse whether they’re legally represented or not, will sign those documents and then they will be sold to the court. The outcome of filing those documents with the court is that you get court orders as if you had a judicial hearing but no one’s actually attended court.
There is another way to formalise your property settlement, and that is by a financial agreement. So a financial agreement is a private contract between two parties, so each party needs to have independent legal advice and a certificate of receiving that independent legal advice before that financial agreement could be considered binding. It’s a more expensive way to formalise your property settlement so I would rather consent orders.
There are limitation periods involved with formalising your property settlement, so if you’re in a de facto relationship and you’ve separated today you’ve got two years from today’s date to formalise your property settlement. If you’re married and you get divorced you’ve got 12 months from the date of your divorce to formalise your property settlement. If you’re outside of these time periods you need to seek leave of the court.
There’s many advantages for formalising a property settlement, including if you’re receiving property you’re exempt from stamp duty. There’s risks of not formalising your property settlement so there’s ongoing uncertainty, and also the values used in property settlements are current values, so if you separate now but you don’t do resettlement until five years later, the value of the house will be the value in five years’ time. So it’s always better to formalise your property a settlement at the date of separation or as soon after rather than putting it off.
If you have any questions about what you’ve heard today or you’d like to get in touch please contact me or any of the other members at Turnbull Hill Lawyers and we’ll be happy to help. Thank you.