Can we agree on a Family Law settlement without going to Court?
25 October 2018
Can we agree on a Family Law settlement without going to Court? This is a question asked by many clients at Melbourne Family Lawyers. The answer is both yes and no.
If we are dealing with only property and financial issues, there are only two ways to legally document a Family Law Property settlement.
If each party is legally represented by separate and independent Lawyers, then it is possible for a Financial Agreement to be negotiated and signed in order to legally finalise a settlement. In this situation, it is not necessary to have the settlement approved by the Court.
If only one party is represented by a Lawyer (noting that it is not possible for both parties to be represented by the same Lawyer), then the only option is to file an Application for Consent Orders with the Court. The Court then scrutinises the proposed settlement and, if the settlement is found to be just and equitable and in accordance with the Family Law Act requirements, the Court will make Final Orders by consent. This process usually does not require either party or his/her lawyer to attend Court.
If we are dealing with only parenting and child issues, there is only one way to legally formalise such arrangements and that is by Court Orders. If the arrangements are agreed to by both parties, we can prepare an Application for Consent Orders which submits the proposed Consent Orders to the Court for approval. As long as the proposed Consent Orders are in accordance with the Family Law Act, the Court will routinely approve those orders and make Final Orders by Consent. However, in some circumstances, it may be an option to deal with parenting and child issues in a more informal basis by using a Parenting Plan. A Parenting Plan sets out the agreed parenting arrangements for the children but it cannot be enforced through the Family Law Courts. Consent Orders can be enforced through the Family Law Courts.
A reason why you would have a parenting plan (rather than Consent Orders) would be if the children are very young and the separation is recent and it was not yet clear what would be best for the children long-term. However, bear in mind that usually if Consent Orders are made, they can usually be varied by the parents recording their subsequent agreed parenting arrangements in a Parenting Plan. If Consent Orders are made and the parents cannot subsequently agree on parenting arrangements, then the Original Consent Orders will stand. If only one party wants to subsequently change those original Consent Orders, then a Court Application is required and it may be difficult to convince a Court to change existing Court Orders.
If you are faced with any of these issues, it is essential to obtain the best Family Law legal advice available. Telephone Melbourne Family Lawyers on +613 9670 9677 or click on the blue Make An Enquiry button on this page.
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A direct extract from Family Law Rules- Parts 13.1 and 13.2
Talk to us now for advice about your situation by phoning (+61) 03 9670 9677