What to do if You’re Not Happy with Final Property Settlement?

Your property settlement has been finalised by way of Consent Order through the Family Court of Australia, and that’s it. But what if you have a change of heart afterwards? Is it possible to re-open a property settlement? Well, yes and no. Generally, the short answer is no. It is not necessary to seek independent legal advice before you sign the documents, though you can if you wish. When you sign the documents, and when the Consent Order states how you have agreed with your ex-partner to divide your assets, the Court will approve the Consent Order. You need to remember that once this happens, your Consent Order becomes a final property settlement. This is virtually impossible to re-open once it has been settled, so you need to be completely sure you are fine with the agreement reached with your ex.

But life happens, and sometimes a party will attempt to re-open a property settlement. This application to the court is known as a Section 79A Application, because section 79A of the Family Law Act determines on what basis the court is able to set aside a final property settlement Order.

Section 79A of the Family Law Act – What Is It?

Section 79A FLA lists a number of ground on the basis of which the court is able to look beyond their final property settlement Order. The most common ones are alleged miscarriage of justice by reason of fraud, duress, suppression of evidence, including failure to disclose relevant information, and the giving of false evidence. Basically, if the other party has lied or tried to hide relevant information, this is your ground to go for Section 79A Application. An example of such behaviour is having a secret bank account that the party has not disclosed in the property settlement.

What Happens Next?

Even if you fulfil the preconditions for opening the Section 79 Application of the Family Law Act, it does not mean that the re-opening of your matter will be granted. If you had failed to investigate your partner’s financial position when you had the opportunity to do so, your application may be unsuccessful. If you state that you were forced or pressured to sign the Consent Order documents, this will be very hard to prove, and as a result your application may be rejected. On the other hand, if you are able to prove your life would have been in danger had you not signed the Consent Order documents, you may be granted re-opening of the property settlement.

If you do get your application approved, you will get a court hearing and an opportunity to ask for a different outcome than the one in the original Consent Order.

Should You Apply for Section 79A of the Family Law Act?

This is a difficult question to answer. Of course, your circumstances need to be taken into account, but whatever they are, you need to be aware that the legal costs of running a section 79A of the FLA can be very high – up to thousands of dollars. If you fail, you are likely to need to pay your ex partner’s legal cost.

If you are considering Application for Section 79A, talk to your legal representative first. Here at Withstand Lawyer we employ a number of family law specialists with years of practical experience, and we can assist you with all your family law matters.

Call Withstand Lawyers today at 1800 644 541, email us at info@withstandlawyers.com.au or send an online inquiry so we can schedule a meeting with one of our lawyers as soon as possible.

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