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Do I need a family lawyer to draft my Family Court Consent Orders?

Daniel Myers and Daniel Dalli discuss the risks associated with preparing your own property settlement in an amicable separation.

It is often tempting for amicable separated spouses to decide to draft their own property settlement documentation and avoid the hefty price tag that normally accompanies a visit to the solicitor’s office. There are certainly no laws that force parties to engage lawyers for their expertise and advice, but there are good reasons why they should. If I wanted my house to be wired safely I’d hire an electrician, or if I wanted the plumbing to work properly I’d give the plumber a call. I personally wouldn’t dream of doing any of that nasty technical work myself and I suspect most of you, except maybe the most keen DIY enthusiast, would take the same approach. It’s the same principle when deciding whether or not to use a lawyer, except the consequences of getting it wrong are arguably even worse. Ok - maybe not the risk of personal injury - but a poorly drafted property settlement carries the risk of severe financial loss. In the worst case, this could be hundreds of thousands or perhaps even millions of dollars.

When formalising a property settlement it should be carefully drafted to ensure that:

  1. The agreement is in fact, legally binding, otherwise why are you bothering in the first place? Appropriately drafted Consent Orders ensure that if you ever need to formally rely on them in Court they will stand up.
  2. The agreement accurately reflects the terms of an agreement you thought you had (and not the terms of an agreement that could be misinterpreted against your interest) and that it includes all the parts you wanted it to cover. Given the various legal jargon required this is an easy trap for the lay person to fall into, however once Orders are finalised it can be near impossible to go back and correct any errors.
  3. The agreement ensures a clean-break of the finances so that new assets acquired can’t be touched by the other person in the future. Without a properly finalised agreement, it’s possible for a former partner to make a claim through the Courts at a later date even if they agreed to something different months or years beforehand. This is surprisingly common and is often prompted by some unexpected change in the circumstances of the other partner which may itself improve the strength of their claim.
  4. The Orders meet requirement to ensure certain tax benefits, for example stamp duty exemption and capital gains tax “rollover relief” when certain assets are transferred between spouses. Without an agreement in the proper form you could end up paying lots more to the taxman, unnecessarily, and no-one wants that, except the taxman.
  5. Any division of superannuation entitlements is dealt with appropriately. This is a particularly technical process, both in terms of drafting orders and in the need to liaise with the trustee of the relevant fund before orders can be made.
  6. The Court actually approves the agreement in the first place. Unlike commercial contracts, in family law the spouses don’t get the final say about their agreement, the Court does. Part of the application process is therefore making sure the appropriate information is given to satisfy the Court that the proposed agreement is considered “just and equitable”. A lawyer will be able to give you advice about the prospects of an Application for Consent Orders and draft Order in a form that is preferable to the Courts.

The actual cost of engaging the lawyer will vary from case to case depending on the complexity and how much assistance you actually need. It may not be cheap and it will certainly be more expensive than doing it yourself in the short-term - but if things do go wrong, do you really want to be the person that caused a fire or flood to their house instead of getting the professional to have a look? I would think not.

If you would like further information in relation to any family law issue, please contact Daniel Myers or Daniel Dalli to discuss on 1300LegalHelp or family@rbflinders.com.au.

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About the author

Daniel Myers
Principal Solicitor/Accredited Mediator

Daniel heads up the firm’s family law practice. Having grown up in Manchester, Daniel has been a proud Melbournian since 2007. He’s since practiced exclusively in all aspects of family law matters, including both simple and complex property and parenting disputes. Daniel’s experience also includes working for five years as a volunteer at the Fitzroy Legal Service family law clinic.

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