Do we need Court Orders if we've reached an agreement?

Many separating couples are able to reach an agreement without commencing Court proceedings. Reaching an agreement can save significant time, stress and legal costs. However, it is important to understand that not all agreements have the same legal effect.

The way an agreement is formalised will depend on whether the issue relates to parenting arrangements for children or financial matters such as property settlement and spousal maintenance.

Informal agreements

Some parties reach an agreement through discussions, negotiations between lawyers, or mediation without formally documenting the arrangement.

While an informal agreement may work well where there is a high level of trust and cooperation between the parties, it can create difficulties if circumstances change or one party later decides they no longer wish to follow the agreement.

For example, a verbal agreement about parenting arrangements is generally not enforceable in the same way as a Court Order. Similarly, an informal agreement about property division may not provide certainty that the matter has been finalised.

Parenting Plans

In parenting matters, parents can record their agreement in a Parenting Plan.

A Parenting Plan is a written agreement between parents that sets out arrangements for children, including:

• where the children live;
• the time they spend with each parent;
• arrangements for school holidays and special occasions;
• how decisions about the children are made; and
• communication arrangements between parents.

Parenting Plans provide parents with flexibility and allow them to resolve parenting issues without Court proceedings. However, Parenting Plans are not enforceable as Court Orders.

If one parent later fails to follow the Parenting Plan, the other parent generally cannot apply for enforcement of the agreement. The Court may consider the existence of a Parenting Plan in future proceedings, but it does not have the same legal effect as a Parenting Order.

Consent Orders

Where parties reach an agreement about parenting or property matters, they may apply to the Court for Consent Orders.

Consent Orders are legally binding and have the same effect as Orders made by a Judge after a hearing.

For parenting matters, Consent Orders can provide certainty about arrangements for children and can be enforced if a party fails to comply.

For property matters, Consent Orders can finalise the division of assets, liabilities and financial resources and provide protection against future claims.

Before making Consent Orders, the Court must be satisfied that:

• parenting Orders are in the best interests of the child; and
• property Orders are just and equitable between the parties.

Binding Financial Agreements

A Binding Financial Agreement (commonly referred to as a "financial agreement" or "pre-nup") is another way parties can formalise financial arrangements.

These agreements can be entered into before, during or after a relationship and can deal with issues such as:

• how property will be divided if the relationship ends;
• maintenance arrangements; and
• protection of certain assets.

Unlike Consent Orders, Binding Financial Agreements are private agreements between the parties. However, strict legal requirements apply, including both parties obtaining independent legal advice.

This article is general information only and does not constitute legal advice. Every matter is different — speak with one of our family lawyers about your specific circumstances.

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