In Qld & NSW as in most states, the rules of the Family Law Act apply to married & de facto couples, same gender couples and to all children, regardless of who the children live with — be they the children’s parents or not.
For de facto couples who separated before 1 March 2009, different principles apply but, even these couples can decide to opt into the Family Law Act regime.
There are three principal venues or tribunals, which deal with most family law issues that cannot be resolved by an alternative dispute resolution method (ADR):
- The Family Court of Australia;
- The Federal Magistrates Court (Service)
- The Child Support Agency (CSA).
ADR (alternative dispute resolution)
The term “ADR” refers to any formal process, which is an alternative to going to court or to the CSA for child support. So, ADR refers to:
- FRS: Mediation with one of the Family Relationships Centres, funded by the Federal government. The advantage here is that it is free, you can get an appointment relatively quickly and any outcome can then be formalised through one of the courts.
- Mediation: This generally refers to private mediation, with or without lawyers/solicitors, where the cost of the mediator is split between the parties. Most solicitors will encourage mediation before litigation and even as an alternative to a trial, once a case is started.
- Collaborative Law: This is a highly structured method of negotiation. The spouses sign an agreement as to their behaviour, their aims and each of them undertakes not to litigate, while the collaborative process continues. The solicitors acting for the parties in the collaborative negotiation are banned from representing the same parties if negotiations break down and the parties have to go to court. You can find out more in the collaborative law tab and the links.
Finalising a settlement
There are three ways of finalising property settlements or parenting arrangements;
A. If no court case has been started, an application for consent orders to the court can be made, with an attached signed memorandum of the consent provisions, being with either children, property or both. This will result in an order of the court in the terms of the agreement reached.
B. In financial matters, the spouses can make a binding financial agreement (“BFA”), which is a formal document (like a deed) signed by the spouses and certified by their solicitors. The BFA must comply with certain formalities and disclosure rules. A BFA cannot deal with parenting issues or child support. There is no court involvement in a BFA being made.
C. Two types of child support agreements can be made, including a binding child support agreement, in which case the binding child support agreement must comply with certain formalities.
If a court case has been started, the parties can still settle and lodge a document, usually called “minutes of consent”, signed by the spouses and then the judge will make that an order of the court, if it is just & equitable.
A prenuptial agreement is a formal document, which sets out what the spouses, be they married or de facto, same gender or otherwise, can expect as an outcome, following the breakdown of their relationship (Cohabitation).
A “pre-nup” is one of the forms of a binding financial agreement (“BFA”) but, one that is made at the beginning of a relationship or marriage. These documents can be made before, during or after cohabitation.
A pre-nup therefore, deals with what the parties will keep, if it doesn’t work out for them and they separate. It is most often used as a device to protect assets in second and subsequent marriages, where one or both of the intending spouses have other obligations, for example, to children from a prior relationship.
A pre-nup is not necessarily cast-iron. There must be full disclosure by each party of their assets and liabilities and sometimes, non-financial issues such as health. There must be no duress or unconscionable conduct by one party towards the other.
Generally speaking, a pre-nup will not prevent an application to the family Court later on, if the parties have children, after they have signed a pre-nup.