When married or de facto couples separate it becomes necessary for them to divide their property or assets. This can be a particularly stressful time and often neither party ends up entirely happy with the property division. Sometimes a party may agree to accept a settlement that is not entirely reasonable, this may be due to a desire to avoid court proceedings because they don’t have the emotional strength or financial resources to argue over their assets. One attempt to try and deal with this is the rule considered by magistrates or judges that the terms of the settlement must be ‘just and equitable’ but that is not fool proof.
Obtaining proper legal advice prior to signing any agreement for consent orders or terms of settlement is essential. This is because, unlike parenting orders where an application can be made to vary or set aside orders if there is a significant change in circumstances, the basic principle regarding property is that the court only has the power to make one set of orders for property. This comes from the premise that it is against the public interest and that of the parties usually, if litigation is not final. This means unfortunately, once property Orders have been made under the Family Law Act they are in most cases final. This applies even if the Orders are made by consent.
Section 79A of the Family Law Act gives the court the power to set aside or vary property orders in exceptional circumstances only. Exceptional circumstances include a miscarriage of justice by reason of fraud, duress, suppression of evidence, the giving of false evidence, or some other circumstance which has arisen since the orders were made that now makes it impracticable for the orders to be carried out. In the case of duress, it is not enough to establish that you were under duress when you signed the Orders, it must be established that a miscarriage of justice has resulted.
The fact there may have been a fraud, such as non-disclosure of an asset, or some other ground, itself is not sufficient either, the same miscarriage must be proven. If, upon application to the court, the court is satisfied that one of the exceptional circumstances exists, it may set aside or vary the order if it thinks it is appropriate.
If you want to know what your entitlements are, give us a call.