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I’m Separating – Do I need to get the Court Involved?

Every day, people begin and end personal relationships.

The vast majority of endings happen without the Court getting involved in any way, shape or form.

Sometimes this is because the relationships were fairly new, casual, or potentially not committed to the extent of either marriage or a recognisable de facto relationship.

But there are some critical times when taking the end of your relationship to a more formal conclusion is a much better idea than simply leaving things to their own devices.

Let’s take a look at who’s in that boat and why Court orders are the best option for most.

Who Should be Looking at Formalising the End of Their Relationship?

While many relationships might end without the need for formalities, if you:

  1. were married and separated or divorced; or
  2. just ended what you believe was a de facto relationship,

then you should be strongly considering getting some legal advice on your situation.

That legal advice may well be that you should consider formalising the end of your relationship in the way we describe in this article.

But why?

The main reason is certainty. While you and your ex might have separated on good terms, that could change. You both have up to two years (in most cases) after your relationship ends to bring matters before a Court for property settlement, spousal maintenance orders, or child custody matters.

So imagine this: you and your de facto have separated (with no children). You part in what you believe are amicable circumstances but do not finalise your relationship formally. You are re-building your life and accumulate significant wealth over the next 18 months.

Your ex then brings an application before the Court for property settlement.

All the wealth you have just accumulated is now at risk, and your lawyers will need to spend time and money arguing about why your ex should not have access to it.

Had you finalised things beforehand, only your assets at that time were available for property settlement orders.

Acting fairly quickly can give you greater certainty, and a more stable platform to commence your new start.

Three Ways to Do Things – But Only One Recommended

In this article we’re not dealing with the situation where you have a significant dispute. We’ll assume for the sake of argument that you and your ex are largely able to come to an agreement about what should be happening going forward, and just want to “do it properly”.

In theory, there are three things you could do to try and finalise matters between you and your ex on any issues that need to be dealt with:

  1. Make an informal agreement between yourselves;
  2. Enter into a financial agreement (at least, in relation to financial matters);
  3. Get consent orders from the Court.

An Informal Agreement

We do not recommend this.

While it is tempting to try and avoid what looks like cost and inconvenience of involving lawyers, an informal agreement has a number of critical risks.

Firstly, because it will not likely comply with the requirements we set out in option 2 below, it is probably not binding and enforceable.

At best, it will indicate what you intended to happen, but because the Family Law Act has strict requirements to follow in these circumstances, an informal agreement will not likely follow those rules and probably can’t be used later.

So even if you and your ex are on good terms now, given the risk of that changing in the future you should avoid the temptation to go down this path.

Compliant Financial Agreements

A financial agreement is a document that sets out how you and your spouse wish to divide property. It would not deal with child custody issues.

A financial agreement on separation is similar to the one you might do before marriage (a prenuptial agreement), except for the timing and subject matter.

There are the same strict formal requirements for it to be binding on the parties. So it must be in writing, signed and contain full and frank disclosure of each person’s financial circumstances. Both parties must receive independent legal advice about it. It must also follow any formal procedures in the Family Law Act.

A financial agreement is a significant step up from an informal agreement. Provided it complies with the necessary steps, it will generally be enforceable should someone breach it.

However, if your ex breaches their obligations under a financial agreement, enforcing it would involve more complexity than if you had gone the fairly small extra step and obtained consent orders from the Court.

Consent Orders from the Court

To get to the point of seeking consent orders from the Court, you and your ex will likely both go through the same steps as reaching a financial agreement.

That is, you will make full and frank disclosure to each other and document your agreement carefully. Both of you should get independent legal advice.

Once that is done, your lawyers submit the agreement in writing to the Court and ask the Court to make orders to give effect to it.

Doing this is not significantly more complicated than formalising a financial agreement in terms of costs or process.

What it gives you is:

  1. A greater comfort that your ex will follow through on their side of the deal, since it is captured in a formal Court order;
  2. More easy enforcement if they fail to do so. Once a Court has made an order, the process to enforce it will involve less complexity and fewer steps than if you had gone down the path of a financial agreement instead.

So Do I need to Involve the Court in my Separation?

The strict answer is no – there are ways to finalise many aspects of your relationship without involving the Court.

However, unless circumstances really point otherwise, if you and your partner are agreed on the outcomes you want, then getting those embodied in a Court order is a safe, fairly inexpensive, and effective way to ensure that everyone lives up to their end of the bargain.

If you need help finalising your own separation, seeking consent orders or are involved in a dispute with a former partner, don’t hesitate to reach out and we’d be happy to help.