Sometimes, even after separated couples have entered into a binding family law property settlement, they may decide to get back together. The problem is, clients who decide to reconcile with their former partner after they have finalised their property matters may not consider what will happen if they decide to separate at a later date.
If you are in a position where you have previously formalised a property settlement but have decided to reconcile with your former partner, Caroline Counsel Family Lawyers can provide you with tailored advice about your options. This may prevent you from finding yourself in a more difficult position in future if you and your partner separate again.
If you have already separated and are unsure where you stand with respect to the property settlement you entered into before reconciliation, you should contact our office as soon as possible and make a time to speak with one of our lawyers about your situation.
You might be in a situation where you are concerned that your former partner wants to enter into a new property settlement when you do not wish to do so. Alternatively, you might be in a situation where you would like to enter into a new agreement about property matters with your former partner and you want to know where you stand. In either situation, it is important that you obtain legal advice as early as possible.
If the Court made property orders to resolve your family law property matter, either with or without consent, generally speaking, the Court would have made those orders with the intention of severing the financial relationship between you and your former partner. The Family Law Act 1975 (the Act) does not provide specifically for a situation where parties decide to reconcile after the Court has made orders finalising their financial relationship. Therefore, this area of law is quite complex and you should obtain legal advice as soon as possible.
In cases where property orders were made and parties later reconciled, parties often try to rely on section 79A(1A) of the Act to try and argue that the previous orders made should be varied or set aside. This is on the basis that when the parties reconciled, there behaviour may have amounted to their implied consent to get rid of or change the orders which were previously made.
Section 79A(1A) provides as follows:
“1A A court may, on application by a person affected by an order made by a court under section 79 in property settlement proceedings, and with the consent of all the parties to the proceedings in which the order was made, vary the order or set the order aside and, if it considers appropriate, make another order under section 79 in substitution for the order so set aside.”
Caroline Counsel Family Lawyers can review your version of events since separation in order to provide you with advice regarding the range of likely outcomes in your matter if you or your former partner decided to apply to the Family Courts to vary or set aside the previous orders.
The information in this blog does not constitute legal advice and cannot be relied upon by you. If you require advice specific to your situation, you must contact Caroline Counsel Family Lawyers for legal advice. The contents of this blog are relevant as at 4 April 2018. We recommend you obtain specific advice relevant to you and your family’s situation.
By Michelle Petrovski