Most separating couples reach sensible agreements regarding issues arising from their separation, including parenting arrangements, children’s expenses, property settlements, and spousal maintenance. These agreements can be documented in various ways, each offering different levels of formality, flexibility, and enforceability. Understanding the available options, along with their respective advantages and disadvantages, is crucial to ensuring that both parties’ interests are protected. In this article, Special Counsel and Accredited Family Law Specialist Matthew Shepherd discusses the pros and cons of each type of separation agreement.

Parenting Arrangements

Most parents come to agreements for how their children are to be cared for following their parents separation. These agreements typically need to be reviewed and adjusted as the children grow and their needs change. Parents have three options for documenting these agreements:

1. Handshake

Many parents keep these agreements on a non-binding handshake basis so they can be adjusted as the children grow. Such agreements are flexible and not binding.

2. Parenting plan

Some parents choose to reflect their parenting agreements in a parenting plan. These are written, signed, and dated. They are not enforceable. They do not prevent a parent from applying to a court for consent orders different from a parenting plan. A court can take a parenting plan into account but is not bound to follow it.

3. Consent Orders

Consent Orders are the most formal way to documents agreements about living arrangements for children. They can be made without any court proceedings by filing:

  • Application for Consent Orders which sets out information about the children.
  • Minute of Consent Orders. This is prepared to reflect the particular Orders agreed.

A court registrar needs to be satisfied the Orders are in the children’s best interests.

Consent Orders are the usual way for court proceedings about children to be documented.

Parenting Orders are not final. Parents can agree to vary them. One parent can apply to a court to vary them – but the court must be satisfied that there has been a significant change of circumstances since the orders were made and that new orders are in the best interests of the children.

Children’s Expenses

Some parents choose to use the child support agency (CSA) to assess them for payment of child support. Agreement of the other parent is not needed. The agency can access details of each parents’ taxable income from the ATO.

Other parents prefer to their come to their own customised agreements for how the expenses of their children are to be met. These agreements can be:

  1. Kept on a handshake basis without formal documentation. This does not stop one of them seeking an assessment of child support from the CSA. It does not stop a parent ceasing to pay an informally agreed amount. If one parent stops paying, the other can get them assessed by the CSA.
  2. Reflected in a child support agreement. These can be binding (in which case the Child Support Assessment Act requires that each party get independent legal advice) or non-binding. They can provide for payments of cash (“periodic payments”) or payment of specific expenses to third parties (“non-periodic payments”) such as preschools, schools, health insurance, doctors etc , or a combination. If properly prepared and signed, periodic amounts can be enforced by the child support agency. Non-periodic payments if not paid can only be enforced by the other parent.

Child support agreements cannot cover children over the age of 18 years (although a child support agreement can provide for child support to the end of the school year if children 18 in their last year at school). Enforceable agreement for adult child maintenance can be reflected in court orders.

Property settlement

Agreements for the division of property can be documented in three ways:

  1. Kept on a handshake basis without formal documentation. These are not enforceable and do not stop a party from making a court application.
  2. Consent orders made by a court. These can be made without any court proceedings by filing:
    1. Application for Consent Orders which requires information about the relationship and assets.
    2. Minute of Consent Orders. This is prepared to reflect the particular settlement agreed.

A court registrar needs to be satisfied the Orders are fair.

Consent Orders are also the usual way for court proceedings to be settled.

  1. Financial Agreement

This is a private agreement. It is not lodged with the court and therefore does not need court approval. The Family Law Act requires that both spouses get independent legal advice from lawyers from different firms.

There are grounds on which both Consent Orders and Financial Agreement can be set aside. Consent Orders are harder to set aside and easier to enforce than Financial Agreements. Consent Orders are therefore the more common way to document agreements about property settlement. The legal costs of Consent Orders and Financial Agreements are about the same. However there is a court filing fee for Consent Orders of $200 as at 1/7/24.

Spousal Maintenance

Informal agreements for spousal maintenance are not enforceable.

Other options are:

  1. Consent orders. A spouse can make a subsequent application to discharge, vary, or extend the Order.
  2. Financial Agreement. Both spouses need independent legal advice.  These can only be varied by agreement. Financial agreements are the more common way to document agreements about spousal maintenance (which can include agreements that no spousal maintenance is to be paid).

How Ramsden Family Law Can Assist You With Finding The Right Agreement

When separating couples reach agreements on key issues such as parenting arrangements, children’s expenses, property settlements, and spousal maintenance, the way these agreements are documents plays an important role in their long-term effectiveness and enforceability.

It is essential for separating couples to carefully consider their options and seek professional legal advice to ensure that their agreements are tailored to their specific needs and circumstances.

At Ramsden Family Law, we understand that each family law matter is unique, and what works for one family may not be suitable for another. Our experienced lawyers take the time to listen to your specific situation and objectives, we will help you to fully understand the pros and cons of each type of agreement and provide you with the best advice on how to document your separation agreements. Whether you need assistance with parenting arrangements, children’s expenses, property settlement, or spousal maintenance, we are here to guide you.

Please do not hesitate to contact our family law team to arrange an initial consultation. We are here to help you find the most appropriate form of agreement for your family’s needs.

Posted in: Latest News

August 16 2024