NSW Property Settlement After Separation - Best Way to Reach Agreement?

[Kat984]

Hi, thanks in advance for your help. My ex and I have come to an agreement between ourselves after separation. He keeps all his stuff (super included), I keep all my stuff, we split household stuff as discussed. I want to keep the house, so we have agreed that I will pay him what I can afford to keep the house - noting I have 100% custody of the two children we have who are still quite young, so I am limited in what work I can do.

He has his own business, so on paper his income looks small, but he does ok. So far he has been fantastic and has been paying a mutually agreed upon amount for child support instead of the tiny amount CSA (Child Support Agency) decrees.

Anyway that's all background, not sure if its necessary or not. Basically we just need to get an agreement made which will mean once I transfer the house into my name I will not have to pay stamp duty. Neither of us want to go to the extent of writing everything down - mainly because we have a rough idea but don't really know the full details of everything.. and stuff like non financial contributions and we cant remember the full details of everything anyway and with his own business it would be very hard to put a value on that so we are both happy with the agreement we have made we just need to make it official so I wont have to pay stamp duty once I transfer the house.

What is the best and cheapest way to do this? I hope that all makes sense

 

[Sophea]

Hi Kat 984,

Is great that you have been able to amicably agree on this, but don't count on it always being so. It sounds awful to say this, but once either of you become involved with a new partner etc the dynamic changes significantly. - its just natural. That's why is extremely important to put as much as you can down in a binding instrument as soon as possible. Any money that you spend doing it will be an investment.

Your options are:

• a binding financial agreement, or
• applying for consent orders - whereby you request that the court make orders in the terms of your agreement.

A financial agreement can be made before, during or after marriage, and can include agreements on financial settlements (ie what will happen to joint funds, assets, super etc) and any financial support by one spouse to the other and incidental matters. In order for such an agreement to be legally binding you must both have signed the agreement and you both need to have received independent legal and financial advice as to your rights under the agreement before signing it. Therefore at a minimum, you will need to incur some limited costs associated with obtaining legal and financial advice from the relevant professionals. It would also be wise to have a lawyer draft your agreement as they will help you to think of other things you may not have included.

The other option - getting a consent order - means that you and your partner sign draft orders which are then given to the court to endorse. Once a consent order is made it has the same effect as an order made by a judge. However, you can apply for consent orders without going to court.

The Family Court has an Application for Consent Orders kit, which provides all the documents and information you need to request consent orders. Once you have completed the Application for Consent Orders, you can send it by post or take it in person to the court registry then wait to hear back from the court. The court will only endorse the orders if it is satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable" .

You will incur a filing fee to apply for consent orders and it is still recommended that you obtain legal advice in drafting the orders.