1. The agreement is approved by the Family Court;
2. It has the same effect as a court order made by a judicial officer;
3. The terms must be followed as stated in the document;
4. It finalises the financial matters between you and your former spouse;
5. There are stamp duty exemptions (in some cases) for a transfer of property from one spouse to another; and
6. If you are splitting your superannuation, you must have an order of the court (consent orders).
1. If you have already divided your finances and transferred or sold your property; and
2. There are no assets, liabilities or superannuation to divide.
(This list is not exhaustive and is not intended as legal advice.)
Q & A
Do I have to make full disclosure of all my assets and liabilities?
Yes you do!
What is duty of disclosure?
There are specific rules about full and frank disclosure in family law financial cases. The rules are contained in the Family Law Rules 2004, rule 13.04. Disclosure includes the party’s direct and indirect financial circumstances.
Parties must disclose all their assets, liabilities and superannuation, including any property disposal (whether by sale, transfer, assignment or gift). Property disposal includes anything disposed of 12 months prior to separation.
What happens if I don’t make full disclosure?
Such was the recent case of Trustee of the Bankrupt Estate of Hicks & Hicks & Anor .
THE BRIEF FACTS: The parties, Mr & Mrs Hicks filed an Application for Consent Orders for a property settlement in August 2011. Neither party disclosed in the application that there were debts of $606,000 owed to a Mr S and unsecured creditors. The debt was incurred during the marriage and the projects which were linked to the loan were intended to benefit the marriage.
OUTCOME: The Consent Orders for property were set aside because there was a miscarriage of justice. On that basis, a rehearing is to occur.
What is a Consent Order in Family Law?
A family law consent order is a written agreement that is approved by the Family Court of Australia.
If you have reached an agreement with your former spouse and you want to formalise that agreement and make it legally binding, you can apply to the Family Court for Consent Orders. Consent Orders are used to formalise arrangements about:
- the care, welfare and development of your children (known as parenting orders);
- the division of property;
- superannuation; and/or
- spousal maintenance.
Consent orders have the same legal effect as an order made after a Court hearing.
Do I need a lawyer?
No, you do not need to engage a lawyer to apply to the Family Court for Consent Orders. There is no legal requirements to have a lawyer represent you to apply for Consent Orders. The Family Court website suggests seeking some legal advice to help you understand your legal rights and responsibilities.
How long do Consent Orders take?
Once I have all the information from you, it ususally takes 2-3 days to complete your court documents. Once you have filed your documents with the Family Court, it usually takes 2-4 weeks for the court to approve your Consent Orders.
Is a Consent Order legally binding?
Yes, a Consent Order is legally binding on both parties. It will offer you protection should the other party not comply with the orders.
Can you change an existing Consent Order?
Yes you can change an existing Consent Order if both parties agree to the change. You can make an application to vary or discharge an existing order.
Secretly recording your spouse’s conversation where there is family violence is an issue that has been discussed widely. When family violence, child abuse and neglect takes place behind closed doors without any witnesses being present, it is very difficult to provide evidence to the family courts when it is illegal to secretly record conversations in some instances. However, with increasing public awareness and media attention, the difficulties of obtaining evidence behind closed doors is now being recognised by the family courts.
In the New South Wales case of Janssen & Janssen the court noted on the facts before them that, “it is notoriously difficult to obtain evidence of family violence which takes place behind closed doors”. The court stated that the decision to admit the secret recordings in this case were based on the particular facts of the case and that the father had maintained a charming public face but had engaged in conduct that alleged to have constituted family violence under the Family Law Act 1975 (Cth).
The Independent Children’s Lawyer (ICL) in this case submitted that in secretly recording your spouse’s conversations would also assist in determining the parenting abilities of the primary carer which may have been compromised as a result of the content and tone of the communication of the father. It is not only what was said in the recordings, but also how it was said.
The Family Court said that evidence from secretly recording your spouse’s conversation in relation to family violence matters will have to be:
- established clearly;
- matters of opinion put in appropriate context and given appropriate weight;
- dependant upon who was expressing the opinion and on what basis; and
- the establishment of the necessary background facts.
Please note that the law in Queensland in relation to privacy and the recording of conversations is different from the law in New South Wales and other states:
- it is illegal to record a telephone call with a device physically attached to the telephone;
- it is illegal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
- it is legal for a telephone call to be secretly recorded by an external device by a person who is a party to the conversation; and
- it is legal for a person who is not a party to the conversation to record a conversation, whether by telephone or face to face.
Same-sex marriages are now recognised in Australia as a result of the amendments to the Marriage Act 1961 (Cth). Same-sex couples applying for a divorce through the Family Law registry can use the existing form “Application for Divorce” and make hand written changes to the terms ‘Husband’ and ‘Wife’ until the Attorney-General’s Department amends the Application for Divorce.
For marriages granted overseas, where a marriage certificate was provided, is now also recognised in Australia.
Where there is duress, undue influence or unconscionable conduct at the time of entering into a Binding Financial Agreement, the court will set aside the agreement.
In the recent case of Thorne v Kennedy, the High Court of Australia set aside two (2) financial agreements on the grounds of duress, undue influence and unconscionable conduct.
The Husband (Mr Kennedy) – 67 years old divorcee with three adult children and assets worth between $18-24 million.
The Wife (Ms Thorne) – moved to Australia in 2007 after meeting Mr Kennedy online 7 months prior. Ms Thorne, a 36 year old European woman had limited English and no substantial assets.
On 20 September 2007, 10 days prior to the wedding, the parties entered into an agreement despite Ms Thorne receiving independent legal advice advising her not to sign the agreement. However, Mr Kennedy informed Ms Thorne that if she did not sign the agreement the wedding would not proceed. At this time, Ms Thorne’s sister and parents had travelled to Australia for the wedding and were staying with the parties in Mr Kennedy’s home.
Only 4 days before the wedding, the Wife signed the first agreement. On 5 November 2007, 30 days after the wedding, the wife signed a substantially identical post-nuptial agreement (the second agreement). Again, the Wife received independent legal advice not to sign the agreement. The agreement was for the Wife to claim $50,000 after three or more years of marriage and if the Husband died while the parties were living together the Wife would receive a penthouse worth up to $1.5M, a Mercedes and a continuing income.
In 2011, the parties divorced, and the Wife commenced proceedings in the Federal Circuit Court seeking a property settlement claim of $1.24M, including spousal maintenance. In 2014, during the court proceedings, the Husband died, and the Husband’s estate continued to prevent the Wife from making a claim on the estate.
In March 2015, the Federal Circuit Court (the primary judge’s decision) set aside both agreements and held that the Wife had “signed the Agreements under duress borne of inequality of bargaining power where there was no outcome to her that was fair and reasonable”. The court relied upon 6 factors in determining their decision:
- the Wife’s lack of financial equality with the Husband;
- the Wife’s lack of permanent status in Australia at the time;
- the Wife’s reliance on Mr Kennedy for all things;
- the Wife’s emotional connectedness to their relationship and prospect of motherhood;
- the Wife’s emotional preparation for marriage; and
- the publicness of her upcoming marriage.
The Husband’s executors appealed to the Full Court of the Family Court which overturned the Federal Circuit Court decision. The Full Court found the agreements to be fair and reasonable because the Wife had been told by the Husband at the outset of their relationship, and she accepted it, that his wealth was for his children and provisions were made for the Wife should the Husband predecease her. The Full Court also held that the Husband’s conduct was not unconscionable because:
- there was no misrepresentation made by the Husband about his financial position;
- the Husband made it clear at the outset that the Wife would not receive any part of his wealth on separation;
- the Wife believed the Husband would never leave her and her lack of concern about her financial position; and
- the Husband’s acceptance of handwritten amendments to the agreements that were made by the Wife’s solicitor.
The Wife then appealed the Full Court’s decision and the appeal was heard in the High Court of Australia in August 2017 and the Judgement was delivered in November 2017.
The High Court upheld the Federal Circuit Court’s decision and found the agreements had been entered into by duress, undue influence and unconscionable conduct.
The matter was returned to the Federal Circuit Court awaiting judicial determination regarding the Wife’s application for a property settlement and spousal maintenance.
This Case Provides Some Clarity For The Future
The High Court in Thorne & Kennedy listed 6 factors which will be more strongly considered where there has been duress, undue influence and unconscionable conduct in the context of pre-nuptial and post-nuptial agreements (at ):
- whether the agreement was offered on a basis that it was not subject to negotiation;
- the emotional circumstances in which the agreement was entered including any explicit or implicit threat to end a marriage or to end an engagement;
- whether there was any time for careful reflection;
- the nature of the parties’ relationship;
- the relative financial positions of the parties; and
- the independent advice that was received and whether there was time to reflect on that advice.
Please note that the High Court gave clarity to further issues, and some still remain unresolved.
This article is not legal advice and is intended to provide general information only.
Family Advocacy and Support Services (FASS) – Legal Aid Qld
A free service for parents affected by family violence is now available in the Federal Circuit Court and Family Court of Australia. The service includes social support and duty lawyer services.
Duty Lawyers and family violence workers will be available at Court on days when there is a Duty List. Services provided will include legal advice, court support, safety planning, legal information and referrals. The Duty Lawyer may also appear in court on behalf of an unrepresented client or assist with negotiations with the other party.
The type of assistance will be determined on a case by case basis depending on the circumstances of the client, Legal Aid guidelines and availability of resources.
This is provided by the Family Advocacy and Support Services (FASS) – Legal Aid Qld.
The Hon. D Bryant, Chief Justice, Family Court of Australia said it doesn’t matter who their parents are as long as the children are in a stable, loving and caring relationship in which they are brought up.
Family Court judge enters same-sex debate
Children need to be raised in an environment where they are surrounded by happy, loving relationships, and it does not matter whether their parents are of the same sex or heterosexual, says the nation’s most senior family law judge.
Family Court Chief Justice Diana Bryant, who has presided over many hundreds of disputes involving broken families in her 17-year career as a family law judge, said what children needed most was to be surrounded by stable, functional relationships. “What you want for children is a stable, loving and caring relationship in which they are brought up,” she told The Australian. “It really doesn’t matter who their parents are as long as they have all of those aspects, and if they do, there is absolutely no reason why there should be any discrimination in my view.
“What you don’t want children to have is to be living in a confected, dysfunctional relationship — whether it is two parents of the same sex, or two heterosexual people.”
In a rare intervention in a key debate, Chief Justice Bryant said same-sex marriage would have no effect on the way the Family Law Act applied to children. This is because the legislation applies in exactly the same way to married and de facto couples and their children, regardless of whether they are in a heterosexual or same-sex relationship.
“The Act applies equally to children of same-sex couples as it does to children of heterosexual couples,” Chief Justice Bryant said. “Apart from divorce itself, if the Marriage Act was changed it is not going to make any difference to the way in which the Act applies.”
The first review of the family law system since 1976 is currently taking place. This is great news for families who can’t afford the high costs of legal representation in the Family Courts.
There is longstanding recognition that the current family law system is failing many families, with protracted litigation, huge financial costs and delays. The current family law system as it stands today mostly causes more anguish and grief for families, exacerbating parental conflict rather than providing a safe environment where they can achieve a fair and timely outcome to co-parent.
A new statutory authority has been designed to offer self-represented litigants a process that offers more flexibility and an inquisitorial alternative to the litigious approach. Families will be helped by a panel of members who are experts in family law, family dispute resolution, family violence, psychology, mental health and child development. Families won’t be able to have a solicitor attend with him without special leave of the court. It won’t be necessary to have a solicitor as the panel will be well equipped to assist you from a legal perspective.
It is understood that the during the trial period of this new process, families can take advantage of the panel at no cost.
If you would like to know more about the review of the family law system and how it can help you, please contact our legal drafter, Melita Lloyd.