Perth Consent Orders Lawyers

Why should you choose Consent Orders over Binding Financial Agreements?

Consent Orders give you certainty because the court will only make them if it is satisfied that the orders being sought by the parties are just and equitable, in simple terms that the orders being sought are fair to both parties based on prevailing circumstances of each party at a time the application is made.

• A party will not have further claims to make against the other party unless they have a reason to but that is not easy to do. A fresh application will have to be made to commence any proceedings to have the Orders set aside.
• Once Consent Orders are made parties, are bound by the orders breaching them results in contraventions. Contraventions of court orders have serious consequences for parties.
• By contrast, a BFA is a private agreement between two parties. The court does not review them or examine them so they can be fair to all parties or unfair to one of them. The court only reviews them when one of the parties makes an application to challenge the validity of the agreement or one of them fails to act according to their agreement and they seek to enforce their agreement through the assistance of the court. This could happen in situations where one party is wealthier than the other and seeks to protect their assets.
• BFA’s do not offer the certainty compared two Consent Orders. BFA’S as acceptable to being scrutinised or being set aside by the court when found not to be fair and equitable upon challenge.

Advantages of Consent Orders over BFA’S

Consent Orders are the most cost-effective way of getting your Perth property and assets sorted out without spending a fortune on legal fees. BFA’s involve 2 sets of lawyers acting for different parties. Lawyers tend to charge more for preparing BFA’S because there is a possibility they will be challenged in the future.

Consent Orders are generally seen as a safer option over BFA’S because BFA’s can easily be challenged when one’s circumstances change and can be overturned by the court rendering the entire agreement useless sometimes. There is more to this though as both Consent Orders and BFA’S can be set aside when reasons permit.

It is crucial that you obtain proper legal advice before you formalise your documents to ensure you use the appropriate mechanism to achieve what you want to achieve and to achieve the best result for you.

Tax exemptions

If parties agree for one of them to keep their properties such as a family home or an investment property, titles and mortgages will have to change hands which means parties can claim stamp duty exemptions using one of these documents. The amount saved on stamp duty will depend on the value of the asset in question.

Superannuation transfers can be done through both Consent Orders and BFA’s. Both types of documents allow for superannuation between parties to be split according to their agreement, however Consent orders gives you more certainty as they are not easily set aside by the Court who make them.

Enforcement of duties/obligations.

Consent Orders are Court orders which means the court can enforce them if one party is not compliant with any aspect of the court orders. Since BFA’s are private contracts, they are harder to enforce, and the courts will need to first form a view about them about the overall agreement and that can only happen when an application is made to the Court by one party. This is a hassle and can be costly to do.

In some situations, the Court can override BFA’s if the Court is satisfied that the agreement is unfair. In comparison the Court is less likely to overturn Consent Orders because they were reviewed and approved by the Court before they were made in the first place.

You can obtain a Consent Order or have a BFA a drafted any time after your separation and you do not need to wait until you are divorced to do that if you were married.

Stamp duty exemption

After the breakdown of your relationship, you and your partner can seek to formalise your agreement in two ways. You can document your agreement regarding your property by way of a form 11 Consent Orders or by entering into a financial agreement with your partner.

A formal binding agreement between the two of you will give you the Peace of Mind and some certainty and allow you to move on with your life after the breakdown of your relationship. Formalising your agreement in the right way, will allow you and your partner to transfer property to each other and will not be liable for payment of duty which would normally being could on the transference of property between parties. To qualify for an exemption, you must ensure that the transfer of the property is documented in accordance with either:

• A Court order made by the Family Court in accordance with applicable laws; or
• A binding financial agreement made under the Family Law Act or the Family Court Act for those in De Facto relationships in WA.

Contact one of friendly Family Law Lawyers for a confidential chat about the best option for you to document and finalise your agreement on (08) 9468 3297 or email office@abmslawyers.com.au