FAQ about financial agreements and property settlement

If your relationship has ended, and you and your partner both agree on how financial issues should be dealt with, then either a financial agreement or consent orders may be used to formalise your agreement.

The main difference between the two options is that consent orders need the approval of the Court whereas financial agreements do not require any external approval. You can make your own private Agreement, as long as you both agree and it will be binding as long as you follow the requirements for obtaining the mandatory legal advice.

Putting a financial agreement in place is also less expensive especially if you use our tried and true system.

The ideal way to restrict or waive child support is by entering into a Child Support Agreement, made under the Child Support Assessment Act.

You could also use the Child Support Agreement if you have agreed with your ex-partner to increase child support or vary it in any way from the official Child Support Assessment.  You can request an Assessment of Child Support from the Child Support Office of the Department of Human Services.

We recommend you first speak to the Child Support Assessment Office, which is part of the Governments’ Human Services Department, and request a child support assessment.  This will tell you how much child support you are legally entitled to receive from your partner, or how much child support you will need to pay your partner.

If you both agree, you can vary this amount, by either increasing or decreasing it.  You can do this by either:-

• a private arrangement, agreed between yourselves.  For example, your ex-partner can agree to pay an extra $100 to your account each week, above and beyond his or her payment obligation under the Assessment Notice.  Note, however, that your partner will not be legally bound to pay the extra amount, only the assessment amount;
• alternatively, you could enter into a binding child support agreement.  This makes any changes to the assessment amount legally binding.  You can find out more about child support agreements here.

You may also choose to enter into a written, informal agreement documenting your agreement on details relating to the care and well being of the children.  This may include specifying swap over days and the times which children spend with each parent, schooling arrangements, contact with relatives, and other issues.  An ideal way to record your understanding on these issues and help ensure both parents are operating from the same page, is to make a parenting plan.  For more about parenting plan, click here.

Stamp duty and capital gains tax liabilities may come into play when property is transferred from one partner to another, such as the matrimonial home or investment property, during a property settlement.  However, if the couple have entered into a binding financial agreement that deals with the property transfers before the date of the transfer, the parties will be exempt from paying stamp duty and capital gains tax.

The stamp duty exemption and CGT concessions are made available under state and territory legislation if the transfer is made under a financial agreement, irrespective of whether the parties are married or in a de facto relationship.  The exemptions on stamp duty and CGT under financial agreements are only applicable if the transfer of property, whether it is real property or a motor vehicle, is specifically referred to in the agreement.

To enable the exemption to be processed, the Office of State Revenue must sight a copy of the financial agreement at the date of assessment.