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Consent order or Binding Financial Agreement?

When a marriage or de facto relationship ends and the parties agree on how their property should be divided, an agreement can be made through either:

  • a binding financial agreement, or
  • consent orders, in which you ask a court to make orders in the terms of your agreement.

What are binding financial agreements?

These agreements do not need to be approved by the court and can cover:

  • financial settlement (including superannuation entitlements)
  • financial support (maintenance) of one spouse by the other
  • any incidental issues.

For a financial agreement to be legally binding, you must both have:

  • signed the agreement, and
  • received independent legal and financial advice before signing.

Can a financial agreement be set aside?

A court can declare the agreement invalid, and set it aside. Examples where the court has set it aside include incorrect legal advice is provided or one party signs the agreement under duress.

What are consent orders?

A consent order is a written agreement that is approved by a court. Signing draft consent orders means you agree with the orders and will follow the terms stated in the document. You do not need to attend court, however the court will need to be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable”.

When the consent order is made, it has the same effect as a court order made by a judicial officer after a court hearing.

Consent orders about property and financial orders may deal with:

  • transfer or sale of property
  • splitting of superannuation
  • maintenance.

How do I know which one is best for me?

Contact us and we can advise you on the appropriate way to finalise your agreement.

 


Have you considered making an advance health directive (AHD)?

An Enduring Power of Attorney is when you appoint a person to manage your assets and financial affairs if you are unable to do so due to illness, an accident, or your absence. Similarly, if you are unable to make decisions due to illness of incapacity an AHD is a formal set of instructions for your future health care.

Why make one?

There may come a time when you are seriously ill or unable to communicate and critical decisions about your health care would still need to be made. An AHD allows your wishes to be known and gives health professionals direction about the treatment you want.

What does it cover?

An AHD can express your wishes in a general way, such as stating that you would want to receive all available treatment. You can also give specific instructions about certain medical treatments. For instance you might feel strongly about whether or not you want to receive life –sustaining measures to prolong your life. An AHD may also outline your views about the quality of life that would be acceptable to you.

When should I make one?

The best time is now, before anything happens. But it’s particularly important to have an AHD if you are about to go into hospital, or if you have a medical condition that could affect your ability to make decisions.

How do I make an AHD?

Please contact our office to discuss making a plan that will determine your future health care.