Separate smarter: We have agreed
Where it is safe to do so, you can take ownership of your dispute. Whether you agree, partially agree or don’t agree at all. You can mediate at any stage, as many times as you need. It is time we started thinking differently about family law disputes.
It is usually best for everyone involved if you come to your own agreement after separation.
If you and your former partner have agreed about the arrangements for your children (considering their best interests) and/or your property and financial arrangements, you can formalise your agreement without the need to attend court.
It is always a good idea to document or formalise your agreement. It helps to reduce any issues in the future and makes it clear what needs to happen and when, so that both you and your former partner are clear about and can comply with the agreement.
What are your options?
When you agree, you have a few different options to document or formalise your agreement.
| Types of agreements | What is the difference? | |
|---|---|---|
| Children | Parenting plan | A written parenting plan is not legally enforceable. |
| Consent orders – made by the Court | Consent orders are orders made by the Court and can be enforced if not complied with. | |
| Financial | Financial agreement | A financial agreement, if binding, removes the Court’s jurisdiction in relation to financial proceedings. The Court does, however, have power to set aside a financial agreement in some circumstances. |
| Consent orders – made by the Court | Consent orders are orders made by the Court and can be enforced if not complied with. |
Consent orders
Consent orders are written agreements in which you and the other party agree on and ask the Court to formalise as court orders. You can apply to the Court for consent orders to be made without actually going to or appearing in court.
You can make consent orders for both parenting and/or financial arrangements at the same time in the one application. You should seek legal advice before entering into consent orders. They must meet the Family Law Act criteria for being in the best interests of the children and just and equitable in relation to financial matters. The Court cannot make orders that don’t meet that criteria, even if all parties agree.
There is more information about parenting and/or financial arrangements and a step-by-step guide to applying for consent orders on this website.
Parenting plans
A parenting plan is a written record of an agreement between parents about the care of the children that is signed and dated. However, it is not a legally enforceable agreement.
For more information about parenting plans see the Family Relationships online website.
A parenting plan only covers arrangement for your children. If you need to make arrangements for finances and property, you should read more about financial agreements and consent orders.
Financial agreements
A financial agreement is a contract between two or more parties made under Part VIIIA (for marriages) or Division 4 of Part VIIIAB (for de facto relationships) of the Family Law Act 1975.
You and your former partner cannot enter into a financial agreement without each of you first getting independent legal advice from an Australian lawyer.
For more information, see Financial agreements.
***Disclaimer – The above information was taken from the Federal Circuit and Family Court of Australia as accurate in October 2023. If any changes are made by the court from that date they may not be reflected in this post