If you and your partner are going through a separation or divorce, you will probably agree that it can be an emotionally and financially challenging time. Apart from organising new living arrangements, you and your partner will need to organise how to divide your properly and assets. It is heartening to know that quite often an agreement can be reached amicably, or through negotiation, without the need for court proceedings.
Even where an agreement is reached between separating couples, it is still advisable to obtain a “Consent Order” from the court, which records the terms of the agreement. The primary reason for doing so is to formally finalise the settlement. If an agreement is reached but not formalised as a Consent Order (or does not comply with the family law requirements), it may be difficult to enforce. The other party may also apply to the court for a settlement which is different from the one you informally agreed to. Another reason for formalising your agreement with a Consent Order is that it usually exempts the parties from having to pay transfer duty on any transfer of property from one party to the other (for example, where one party transfers to the other their interest in the matrimonial home).
Not all matters will result in an immediate settlement though, leaving the parties to contemplate the option of litigation. As lawyers, we inform clients of the process, its advantages and inadequacies (including the additional emotional and financial costs, delay and uncertainty). The silver lining to these litigated cases, though, is that most of them settle before a trial is actually required.
In all cases, settled or litigated, there is a requirement that the Consent Orders or litigation occur within strict time frames and be on terms that are “just and equitable”.
In summary, it is always more cost effective (financially and emotionally) for separating parties to try to reach a properly settlement sooner rather than later.