Frequently Asked Questions
Financial separation agreement
Do we have to divide superannuation or can we each keep our own?
There is no legal requirement to divide (aka split) your and your partner’s superannuation. As long as your overall financial separation agreement is just and equitable (aka fair) according to what the law says, then your agreement will be approved by the court.
Do we have to personally go to court to have our financial separation agreement approved?
No. You and your partner aren’t required or expected to attend court to have your financial separation agreement approved. The court will determine whether your agreement satisfies the fairness requirement on the information in the paperwork that you submit.
What happens once the court approves our financial separation agreement?</p> <p>
You’ll each receive a stamped copy of the orders in the mail. You then need to take steps to implement your agreement.
Why does the court have to approve our financial separation agreement?
Because where a financial separation agreement is being made official in financial consent orders, the law says that the court has to approve it.
Is there a way to make our financial separation agreement official without going to court?
The only other enforceable and binding way to make your financial separation agreement official is in a binding financial agreement. This is a private agreement that doesn’t have to be submitted or approved by the court. You and your partner must receive independent legal advice from separate lawyers.
Do we have to get legal advice?
For financial consent orders, you’re not required to get legal advice. We do strongly encourage and recommend you to do so though before you make the agreement official.
How long does it take for the court to approve the agreement?
This depends on the registry location where you submit your agreement paperwork. For example, in Canberra the time it takes for the court to approve the agreement is typically between 2-6 weeks. For South Australia, Queensland, Victoria and New South Wales, it can be anywhere between 2-5 months.
The questionnaire asks about stuff that we have agreed to exclude or ignore. Do we have to still include it in the paperwork?
You and your partner are under a legal obligation to provide financial disclosure. This means exchanging with one another documents that evidence your income and your financial position. Even if you’re “not touching one another’s stuff”, you still must include the information that is asked of you and answer all of the questions that the documents ask. Failure to do so could mean that your agreement can be challenged later on
Do I need to complete the questions with my partner together or can we do it separately?
You and your partner can complete the questions together or alternatively, one of you can take on responsibility to prepare the paperwork as best they can, forwarding the draft documents onto the other person to add in any missing detail.
Should I be nervous about the court having to approve our agreement?
Everyone gets nervous at the idea of the court having to review and approve their financial separation agreement. Whilst there is always a risk of the court initially refusing the approve your agreement, you can take steps to minimise that risk. For example, you can engage a lawyer to review your draft paperwork before you sign it to make sure that it’s correct, seek legal advice or prepare an affidavit explaining the fairness of the agreement.
I don’t know how I feel about this agreement. What can I do?
Get legal advice before you sign or commit yourself to the agreement.
I don’t understand the paperwork. What can I do?
Get legal advice.
Does my partner have to agree to the financial split?
Yes. If you don’t have an agreement, then your first stop is to try and reach one.
Where can I get a title search?
For most State and Territories, you can purchase a copy of your property’s title online directly from the local State or Territory Land Titles Office.
For New South Wales properties, you have to use their third party providers, such as InfoTrack.
Where can I get legal advice?
Independent legal advice will generally include advice about:
- What the law says about the division of assets, debts and superannuation after separation
- Independent legal advice about the application of the law to your circumstances, including what an appropriate division of your assets, debts and superannuation would look like, parenting matters, child support
- Whether the proposed financial agreement reached is within the range of what the law says is an appropriate one and whether there would be an adjustment to you in the division of property in view of your contributions and future needs
- Whether the drafting of the documents is advantageous to you or disadvantageous to you and in what respect(s). Your solicitor may recommend that some changes be made
- Information about the best way to formalise your agreement about the division of your assets, debts and superannuation (aka your property settlement)
- The circumstances in which your Financial Consent Orders can be set aside
- What it means to provide full and frank financial disclosure
- Whether it is in your interests to formalise your parenting agreement
- The effect of formalising your parenting agreement by way of Parenting Consent Orders vs a Parenting Plan and whether you can ever change your parenting agreement
- The effect of a divorce
- Whether you are entitled to receive or at risk of spouse maintenance
- Your obligations to pay child support or your entitlement to receive
- Options for formalising your agreement about the provision of child support/financial support for your child/ren
- Important time limits for defacto and married couples
Where can I get legal advice?
- Your local Law Society. They may provide one off pro bono legal advice through their Legal Advice Bureau.
- Your local State or Territory Women’s Legal Centre. The Centre may be able to provide a one off free advice appointment.
- Your local Family Court or Federal Circuit Court Registry. There may be a duty aid legal service that can provide a one off free advice appointment.
- Private family law firms.
How do we apply for divorce?
Applying for divorce jointly is relatively simple and easy to do. Read more.
What documents do we need to submit with our divorce?
In addition to the divorce application, you also need to submit a copy of your marriage certificate (and if it’s not in English, then an affidavit by a translator about it), and if you or your partner were not born in Australia a copy of your citizenship certificate or documents proving residency. If you and your spouse lived together separated under the one roof in the 12 months before applying for divorce, then you’ll also need to do an affidavit giving evidence that there was a change in your marriage after separation.
Can we apply for divorce at the same time as making our financial separation agreement official?
Yes but only if you’ve been separated for more than 12 months.
What are our options in making our parenting separation agreement official?
You can make your parenting separation agreement official in a Parenting Plan or Parenting Consent Orders. There are differences between the two so it’s important you understand the difference. Click here to find out more.
Do we have to make our parenting separation agreement official?
You’re not legally required to but it can be a good idea. It can be a good idea because you both have a clear understanding about the agreement, expectations and your obligations.