Reaching an agreement with the other party offers many advantages, such as:

• you make your own decisions
• you greatly reduce the financial and emotional costs of legal proceedings
• your continuing relationship as parents, if you have children, is likely to work better
• you are able to move forward and make a new life for yourself, and
• you may improve communication with your former partner and be better able to resolve disputes in the future.

You should seek legal advice when considering which approach is best for you.

Why settle without going to court?

It saves you time and money if you can reach agreement without going to court. You also know exactly what each of you will get, whereas, by going to court, there is uncertainty waiting for a judicial officer to decide for you. Additionally, long court proceedings can increase stress and add to the pressure that you and your family are under.

How do I formalise our agreement?

You can agree on how your property should be divided without any court action. You do this through either:

• a financial agreement, or
• an agreement formalised by applying for consent orders in which you ask a court to make orders in the terms of your agreement.

What are financial agreements?

The Family Law Act 1975 provides for parties to a marriage or de facto relationship to enter into a binding legal agreement about the financial arrangements should their marriage or de facto relationship break down. Sometimes people know these agreements as ‘prenuptial agreements’ but the legal term is ‘financial agreements’.

Sections 90B–90KA of the Family Law Act 1975 deal with financial agreements by parties to a marriage. Sections 90UA–90UN apply to financial agreements by de facto couples. The Act only provides for financial agreements between de facto couples if the parties to the relationship were ordinarily resident in New South Wales, Victoria, Queensland, South Australia, Tasmania, the Australian Capital Territory, the Northern Territory or Norfolk Island when the agreement was made.

You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:

• financial settlement (including superannuation entitlements) after the breakdown of a marriage or a de facto relationship
• financial support (maintenance) of one spouse by the other after the breakdown of a marriage or a de facto relationship,
• 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. The situations in which that is possible are provided at Section 90K (married couples) and Section 90UM (de facto couples) of the Family Law Act 1975.

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. 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,
• Child maintenance and spousal maintenance.

You and your former partner can apply for consent orders to be made in the Family Court without going to court.

If proceedings have been commenced in the Federal Circuit Court, and you subsequently reach an agreement, you can ask the Court to make orders by consent.

How do I apply for consent orders?

For step-by-step details on how to file consent orders, see the following information:

• How do I – Apply for Consent orders
• How do I – apply for Property and financial orders
• Applying to the court for orders fact sheet

How do I divide my superannuation after the breakdown of a marriage or defacto relationship?

What if you cannot agree about property and financial arrangements?