HELP! WE HAVE REACHED AN AMICABLE AGREEMENT
It seems to me that people often are unclear of what
steps to take if they are lucky enough to be able to reach a friendly
agreement with their ex-partner. Most people are aware that the agreement
should be formalised in some way but are not quite sure how to go from
there. The situation is usually complicated by one party buying the other
party out of the house and the sequence of events can be difficult to
anticipate.
Today, I thought I would set out some of the ways that
you can reflect your amicable agreement with your partner and still give
yourself the protection into the future against a breakdown of
communication and, perhaps, an attempt to get an additional share of the
property by your partner.
Whilst agreements can be reflected in three different
ways in the Federal Magistrate’s Court in relation to property and
children, the most common way is by way of Consent Orders.
An Application for Consent Orders is prepared by the
parties and attached to a typed up copy of the Orders that the parties
agree for the Court to make. Both Husband and Wife sign the document and
they are forwarded by one party into the Federal Magistrate’s.
A Federal Magistrate will peruse the documents and, if
he or she feels that the agreement is reasonable, and in all the
circumstances fair, will then make those Orders in the terms agreed on by
the parties.
In due course, the parties receive two sets of their
documents back marked with the Court’s seal to show that the Orders have
been made. Orders made by Consent have the full force and effect of the
law and have the same effect as if the parties had been to trial and a
Magistrate made those Orders.
Once the Form is finalised in relation to have the
agreement recognised in the Court what if, however, one party, say the
Wife, wants to buy the Husband out of the house pursuant to the Court
Orders?
Well, this is a conveyance of property. The person
buying out the other party would presumably have organised their finance
through a bank. The bank will be anxious to have the mortgage lodged with
the Department of Natural Resources. To do this, they need a stamped
transfer document. Usually one party borrows enough money to pay out the
old mortgage (that was in joint names) and perhaps a sum of money to their
ex-partner.
Under the Family Law Act, there is no stamp duty
payable on a transfer of property from one party to another if the
transfer is made pursuant to a Federal Magistrate’s Court Order.
The saving can be quite significant. Also there are no
lodging fees payable in respect of the documents to be lodged.
The Solicitor will usually take the sealed Court Order
from the Court together with the signed transfer documents to the Office
of State Revenue and have the documents marked as showing “Nil” stamp duty
payable. These documents can then be presented to the bank who, upon
receipt of them will pay out the appropriate cheques and loans.
I suppose it seems a bit difficult, but believe me, the
process happens every day and it is quite simple as long as the steps are
followed logically through.
Perhaps the hardest thing is reaching agreement in the
first place, and anyone who is able to do so is to be congratulated.
The cost of preparation of Consent Orders varies from
Solicitor to Solicitor and indeed, you can prepare your own documents if
you want by logging on to the Federal Magistrate’s Court web site<http://www.fmc.gov.au>
If anyone has any other topic they would like me to discuss please fee
free to write in and I will try to give you an overview of the topic in my
column.
(c) Journey Family Lawyers
