Family Law Financial Orders by Consent Process & Requirements
I have selected "pre-nuptual agreements" to describe this query as it is closest out of the options provided. However the query relates to property settlement after separation.
Is it necessary for both parties to provide full financial disclosures in order for consent orders to be accepted by the Family Court of Australia, or can an agreement submitted to the court without financial disclosures still be acceptable to the Court if both parties agree to the terms included without financial disclosures being completed? The orders in this case regard settlement of a piece of land only, not child support or maintenance.
Regards
Hi there. The Family Law Act 1975 (Cth) (“FLA”) deals with the separation of assets on a divorce and provides the framework for the creation of financial agreements, in particular, it allows parties to a divorce or de-facto separation to make their own binding financial arrangements. These can deal with the splitting of assets such as your block of land, and other financial issues like spousal maintenance in whatever way the parties choose. These agreements are then made binding through either a consent order by the Court or by the signing of a Binding Financial Agreement. For the creation of a Binding Financial Agreement both parties must receive independent legal advice to ensure each is being treated fairly and/or knows their rights. In addition both parties must give consent to the agreement by signing it.
While the FLA does not specifically provide that full financial disclosure is necessary when making one of these agreements or seeking a consent order, it would still be wise to give a full and frank disclosure of all your finances. This is because the FLA provides for several situations in which a financial agreement can be voided. A court may make an order setting aside a financial agreement if the court is satisfied that the agreement was obtained by fraud. Fraud here includes non-disclosure of a material matter.
Suggested way forward
You can entirely avoid this risk by ensuring that the financial agreement which you come to accurately summarises your full asset, liability and income position. If you fail to fully disclose your financial position the agreement is at risk of being set aside by the court or being void. As you know however, the dividing of property after a divorce is extremely complicated with many issues that need to be addressed. If you feel that a fair arrangement can be come to between you then you may want to consider creating your own financial agreement by consent. However, if there is disagreement between you it is very important that you seek legal advice. By pressing the "Take Action" button through LawAdvisor we can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.
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The consent to consent orders must be informed consent. If the consent is based on misleading or inadequate information the consent will not be informed consent. There may be a miscarriage of justice because of the non-disclosure of the financial circumstances of a party. If there is a miscarriage of justice the court can set aside the consent orders. Therefore, it is important for both parties to disclose their financial circumstances when applying for consent orders to reduce the risk of the orders being set aside later. You should seek legal advice before filing the application for consent orders at the Family Court.