We trust each other and don't want to go through the additional paperwork/expense.
Can we sort it out and agree verbally or in writing just between the two of us?
In short, the answer is Yes.
However, doing so runs the real risk of a potential costly + lengthy legal dispute at some point in the future.
This is because whatever is agreed verbally or in writing between a couple (without first obtaining independent legal advice) is not binding or enforceable in Court.
The Binding Financial Agreement (BFA) has to be in writing and each party needs to have sought independent legal advice before signing for it to have any legal effect.
These agreements, which are commonly known as/referred to as a prenuptial agreement, can be challenged on many grounds such as being outdated due to change in the parties’ circumstances.
The Court Orders made are final and binding (other than via the usual Court Appeal process) which makes this the best option for the separated couple to make a "clean break" with as much certainty as possible.
There is no set formula used by the Court to divide your property.
No one can tell you exactly what orders a judicial officer will make.
The decision is made after all the evidence is heard and the judicial officer decides what is just and equitable based on the unique facts of your case.
The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage
(see Sections 79(4)and 75(2)) or a de facto relationship (see Sections 90SM(4) and 90SF(3)).
The general principles are the same, regardless of whether the parties were in a marriage or a de facto relationship, and are based on:
The way your assets and debts will be shared between you will depend on the individual circumstances of your family.
Your settlement will probably be different from others you may have heard about.
Court Orders are made in the discretion of the Court such that they are "Just & Equitable".
This FAQ was written by James D. Ford GAICD | Principal Solicitor, Blue Ocean Law Group℠.
This FAQ is intended for general interest + information only.
It is not legal advice, nor should it be relied upon or used as such.
We recommend you always consult a lawyer for legal advice specifically tailored to your needs & circumstances.