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We have reached an agreement, now what?

Wednesday, February 08, 2017
We see a lot of clients who have gone through an amicable (as much as it can be) breakup and have been able to reach an agreement with their former partner with regards to splitting up their property and making arrangements for the care of any children. And this is a great outcome for everyone except when something happens and the agreement is not adhered to or someone wants to change things. How do you protect your interests once you have reached an agreement?

With regards to the property and financial aspects, there are a couple of options. You can enter into a Binding Financial Agreement to formalise everything or you can have Consent Orders submitted to the Courts for their review and approval. For matters relating to the children, a Parenting Plan helps formalizes the agreement or also Consent Orders approved by the Courts.

A Binding Financial Agreement (BFA) provides more flexibility than Consent Orders and provide certainty in the form of a binding agreement. However, there are a number of requirements that need to be satisfied in order for the agreement to be binding such as each party seeking independent legal advice on the effect of the BFA.

The alternative to a BFA is to apply to the Courts for Consent Orders. The process involves filing an Application for Consent Orders together with the Minutes of Consent which need to be signed by both parties. The Courts will then consider the application and if they agree with what’s been agreed, then they will make final Consent Orders. Consent Orders are not automatically approved by the Courts and the parties may have to appear and provide additional information to satisfy the Court the agreement is fair and just.

With regards to parenting, the parties can decide to enter into a more flexible and informal agreement called a Parenting Plan. The benefits of having a Parenting Plan in place is that it can be easily amended without having to go through the Courts. It is a great agreement to have in place, particularly in the early stages of separation, as it outlines to both parties what the arrangements are for the children. Whilst it is not enforceable should the Parenting Plan not be followed, it can be used as evidence in any future Court action and can be used by the Courts when deciding on final Orders. 

It is of utmost importance that before entering into any agreement, that you see your lawyer and receive some independent legal advice.

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