Financial Agreements v Consent Orders

The paper on the weekend carried a story to the effect that many solicitors are no longer doing Financial Agreements. This is in relation to property matters for fear of being sued if the Financial Agreement is set aside.

The Family Law Act has provisions for Financial Agreements both for married couples and for de facto couples. A Financial Agreement is not scrutinised by a Court for when it is made, however it can be set aside. In Thorne v Kennedy [2017] HCA 49, 8th November 2007, there was a Financial Agreement before the marriage and a similar one entered after the marriage. The Applicant had been advised not to enter into the agreement, but she did so. Both agreements were set aside by the High Court. Once parties to a marriage or to de facto relationship have agreed to what should happen to their property after separation, it is preferable to deal with that by way of Court Order. This is done by consent and with parties making submissions in writing to the Registrar as to why the proposed division is just and equitable. Disposing of the matter in this way does not require an appearance and is more difficult to set aside a Consent Order than it is to set aside a Financial Agreement.

Contact Rita Derek of this firm for further advice.

Posted in: Derek Legal Blog at 05 September 18