Divorce and separation can make negotiations difficult. However, reaching a mutual agreement post-separation typically serves the best interest of all parties involved. You might have already come to an agreement, or are hoping to do so following a mediation or alternative dispute resolution process.  

If you and your ex-partner have reached a consensus on matters concerning your children and/or your financial and property settlements, it's possible to solidify your agreement legally without undergoing court proceedings. Formalising your agreement not only minimises future legal risk but a well drafted agreement will also give you a clear outline of your responsibilities, your ex-partner’s responsibilities, and methods for resolving future conflicts.  

So what are my options?

Several pathways are available to document or legalise your agreement, all of which we are able to prepare for you on a fixed fee basis.  

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Parenting plans

Parenting plans are a written document which sets out details of the care arrangement for your children. These agreements typically set out:

who will have care for the children on what day, including provisions for school days, holidays and special events;

how the children will be transported from one parent’s care to the others;

schooling considerations;

parental communications with children;  

and much more.  

A parenting plan serves as a mutual understanding regarding child care, and can help resolve disputes between the parents. However, a parenting plan is not a legally enforceable agreement and any breach of a parenting plan is therefore not enforceable by the courts.  

Binding Financial Agreement

Binding Financial Agreements, “BFAs” or “prenups” are private, legally binding financial agreements which limits the Court's ability to intervene in financial matters. They will set out specific instructions as to how and when your assets, and your ex-partner’s assets, are to be divided between the two of you.  

For this article, we are referring to Binding Financial Agreements which can be signed during are after a relationship has ended, but it is important to remember that BFAs can be entered into prior to either marriage or entering into a de-facto relationship.  

It is important to note that the Court can set aside a financial agreement under specific conditions and that independent legal advice is mandatory for each party before entering into a financial agreement.

Read more about Binding Financial Agreements here.

Consent Orders – Property & Parenting

Consent orders are legal agreements that both parties request the Federal Circuit and Family Court of Australia to formalise. Although you must apply to the court for these orders, they can be applied for without the necessity of a court appearance. These agreements also have the benefit of being able to cover both parenting and property related matters.  

Consent Orders can cover everything that a Binding Financial Agreements or a Parenting Plan covers. Unlike Binding Financial Agreements, it is not mandatory that a person obtain legal advice prior to seeking consent orders. However, it is highly recommended to do so, as the Court will not endorse agreements that fail to meet certain criteria.  

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Binding Child Support Agreement

Most people opt to apply to Services Australia for a Child Support Assessment. However in some circumstances parents might wish to enter into a Binding Child Support Agreement which is a formal, written contract between both parents detailing the specific terms of child support payments, including the amount, timing, and payment method.

This type of agreement differs from a Limited Child Support Agreement, or a Child Support Assessment, as it can be established and accepted without a prior child support evaluation. Parents have the flexibility to decide on any payment amount, which may be lower, the same as, or higher than the standard child support amount determined by an official assessment. Simlarly to a Binding Financial Agreement, both parents are required to obtain independent legal advice prior to signing the agreement.‍

Your next steps

If you are separating from your partner, it is important to receive early professional advice about your options, including the agreements listed above. At Clements Fitzgerald Lawyers, not only do we offer fixed fee pricing for all agreements made by consent, but we offer free, 30 minute consultations.