The applicant (that is the person applying) and the respondent (that is the other party) must be parties to the marriage or the de facto relationship.  That means they must be married, in a de facto relationship, be separated or be divorced.  It also includes parties to a relationship that has been declared void. At least one of the parties to the proceedings must be present in Australia when the application is filed, or at that time be an Australian citizen or resident.

The Family Law Act was amended to allow a creditor or any other person who may be aversely affected by the making of a financial settlement order to become a party to proceedings. This could include any children to the marriage.

The timing of the application

Applications for financial orders can be made at any time following separation.  There is no requirement to wait until 12 months have elapsed.  However, once an application for divorce has been made and a decree absolute dissolving the marriage ordered, parties have only 12 months within which to make an application for property settlement and/or spousal maintenance (the subject of the following section). In limited circumstances, the Court may give you permission to apply outside this time limit but you would need to supply an affidavit (sworn statement) setting out reasons why the application was made late. You should not assume that this permission would be granted. This 12 month time limit also applies to orders made by Consent.

Effect of a Binding Financial Agreement

Some couples decide to make a legally binding agreement about their financial arrangements in the event that the marriage breaks down.  These agreements can be made before marriage, during marriage or after separation.  The legal term for these agreements is ‘financial agreements’.  To be legally binding, these agreements must be signed by both parties and both parties must have sought independent legal advice.  Courts can declare these agreements to be invalid if the conditions mentioned were not met, there is evidence of fraud, they were entered into for the purpose of defeating legitimate creditors, or the circumstances have changed making the agreement impracticable.

What to do if you believe that your spouse may be seeking to hide or sell property?

 Parties have a duty to make full and frank disclosure about their financial situation.  You should consult your solicitor if you believe that your spouse is not complying with this requirement.  Any orders made by the Court may be set aside or varied in the event that parties fail to make full disclosure. If you believe that your spouse wishes to sell property, you can apply for an Interim Order prohibiting the sale of assets until a final settlement has been reached.

For more information on Consent Orders in Australia call AussieLegal on 1300 728 200.