Separation Agreements

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SEPARATION AGREEMENTS

If parties are able to reach an agreement in relation to the issues between them, whether it be issues concerning children, spousal maintenance, or property settlement, that agreement can be formally recorded in the Family Court by consent.

There are specific rules that apply to any agreement in relation to the child support to be paid for children. There are special rules that apply and the format of that agreement is quite different. You will need separate legal advice in relation to that matter.

However in relation to virtually every other matter between parties to a marriage or parents of children, the following information is relevant.

If there are already proceedings in the court about the matter upon which you have now reached an agreement, then the agreement can be recorded by way of a "minute" of consent orders. This minute of consent orders can only be filed after there has been a Form 3 application filed or a Form 12 application for summary maintenance filed. The consent orders can deal with matters on a temporary or interim basis, or on a final basis.

The minute of consent orders, whilst it initially can be handwritten, would normally then have to be typed, and signed by both parties. The Family Law Rules have certain requirements as to the presentation of that document. You should obtain legal advice in relation to the terms of your agreement to ensure that:

The agreement you have reached is fair.

That the orders in fact provide what you want.

That any other matters that should be attended to have been dealt with by way of the minute (eg, previously orders have been discharged or cancelled, if that is appropriate).

When there are not existing proceedings in the court that relate to the matters about which you have agreed, there are 4 main ways of formalising your agreement, namely:

By way of a Form 3 application for final orders, a Form 17 financial statement (if financial issues are involved) and a minute of agreed orders;

By way of an agreement registered pursuant to Section 86 of the Family Law Act. This is dealt with in a separate kit;

By way of an agreement approved pursuant to Section 87 of the Family Law Act;

By way of a Form 12A application for consent orders.

It would be sensible to obtain legal advice about which of the 4 is the best option for you.

The Separation Agreement Kit is in relation to a Form 12A application for consent orders. This is a document which would be prepared and filed at the court when there have not already been proceedings filed in relation to those matters. For example, the parties have separated and now have been able to reach an agreement as to the arrangements for the child. There have been no court proceedings filed in the court about this matter (whether or not there have been proceedings filed say for property settlement). The parties then prepare a Form 12A application for consent orders and sign it before specified witnesses before it is filed in the court.

This Form 12A application can deal with child matters, spousal maintenance and property settlement.

While parties have to wait 12 months from the time that they separate until they can apply for their divorce, they can resolve all other matters between them or make an application to the court, before a divorce. Indeed, they can even apply before separation.

A divorce does have an effect on whether you can make a property settlement application or an application for spousal maintenance, (if you have not already resolved those matters). Generally, parties have from 12 months after a divorce has become absolute (or final) to make an application for property settlement and/or spousal maintenance. However, if the parties reach an agreement in relation to those matters after that time period of 12 months has expired, the parties may still be able to formally record their agreement by way of a Form 12A application in certain circumstances. It is better to formalise any agreement before the time limit of 12 months after a divorce has expired.

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