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EJ Wall & Associates can help you with legal matters surrounding Division of Property, Consent Settlements or another Family Law matter in Perth, Western Australia. Please contact us for more information.
"Once an agreement is reached, you must have your Consent Settlement legally formalised."
Congratulations, you and your spouse/partner have reached an agreement after “amicable discussions” between you, or as a result of “private mediation”. Well done, you have saved yourself much heartache, stress and substantial legal costs. Now you must have your Consent Settlement legally formalised.
How do I legally formalise my Consent Settlement?
There are 2 ways:
A Binding Financial Agreement (BFA) entered into between you and your spouse/partner.
Filing a Form 11 - Application for Consent Orders (Form 11) in the Family Court.
What is a Binding Financial Agreement (BFA)?
A BFA is a legal document prepared by a Lawyer and signed by you and your spouse/partner setting out the Agreement reached. It requires the involvement of two Lawyers. Your lawyer can prepare the Agreement and your spouse/partner Lawyer can give Independent Legal Advice. Both Lawyers must sign a Certificate of Independent Legal Advice. Those Lawyers must be experienced in Family Law matters.
What are the advantages of a Binding Financial Agreement (BFA)?
You and your spouse/partner Agreement is kept private between you and your spouse/partner and the Lawyers. No one else necessarily sees it, unless enforcement through the Court is required. It is not filed in the Family Court.
You and your spouse/partner can agree what you and your spouse/partner want in the Agreement. The Agreement does not necessarily have to be just and equitable (fair).
The Agreement not only finalises Property Settlement, but can also provide for and exclude future claims for spousal maintenance (i.e. maintenance claims made by your spouse/partner for their own support).
Prepared and signed correctly, with full disclosure of all relevant assets and financial resources, the Agreement will be legally binding, provided that both parties received Certificates of Independent Legal Advice and each received their copy of the Agreement after it is signed.
Real Estate properties can be transferred under the Agreement without the payment of value assessed stamp duty – there is only nominal duty of $20
Capital Gains Tax rollover relief is obtained in respect of assets transferred under the Agreement. Ask your Accountant or Financial Advisor for further information about that.
Usually a BFA can be prepared and signed within several weeks of instructions been given to prepare the Agreement.
What is a Form 11 - Application for Consent Orders (Form 11)?
A Form 11 - Application for Consent Orders (Form 11) is a legal document prepared either by you or by your Lawyer and be filed in the Family Court.
You and your spouse/partner do not necessarily require the assistance of a Lawyer, but it is highly recommended that you do so, either to prepare the document and file it in the Court on your behalf, or alternatively, provide you with advice in relation to the document.
A Form 11 has most of the advantages of a BFA except that:
The Family Court will only make Consent Orders if it is satisfied that it is just and equitable (fair) to do so. (See “How does the Family Court divide property on separation”).
A Form 11 cannot completely exclude the possibility of future claims for “spousal maintenance”, but a properly drawn Form 11 document can minimise the possibility of future claims.
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For further information regarding legally formalising Consent Settlements or another aspect of Family Law, contact our Principal and Family Lawyer, Ed Wall for no obligation, free telephone advice on +61 412 891 034