A separation agreement, often referred to as a Binding Financial Agreement (BFA), is a crucial legal document that outlines how assets, debts, and financial responsibilities will be divided after a relationship ends. It may also include arrangements for parenting and child support.
These agreements help former partners establish clear expectations, reducing the likelihood of disputes.
However, when one party fails to uphold their end of the agreement, it can create financial stress, emotional turmoil, and uncertainty.
Understanding your legal rights and the steps to enforce a separation agreement under family law is essential to ensuring fairness and compliance, whether in Queensland or elsewhere in Australia.
What Makes a Separation Agreement Legally Binding?
The Family Law Act 1975 is national legislation. This means that the rules relating to BFAs apply whether you live in Brisbane, remote Queensland or anywhere else in Australia.
To be legally enforceable, a BFA dealing with separation must meet several key legal requirements:
Written and Signed by Both Parties – A verbal agreement holds no legal weight.
Voluntary Consent – Neither party should be coerced into signing the document.
Full Financial Disclosure – Both individuals must provide complete transparency regarding their financial positions, including all assets and liabilities.
Independent Legal Advice – Each party must obtain legal advice from separate lawyers before signing.
Compliance with the family legislation – The agreement must meet the legislative requirements outlined in Australian family law, being the Family Law Act 1975 as at the date of this article.
If these requirements are met, the separation agreement becomes legally binding, and each party is expected to comply with its terms. But what happens if one party breaches the agreement?
Legal Steps to Take When a Separation Agreement Is Breached
When one party fails to comply with a separation agreement, the other party has several legal avenues to enforce it.
The appropriate course of action depends on the nature of the breach and whether the agreement was formalised through the court.
Your solicitor will be able to guide you as to the appropriate approach depending on what the circumstances may be.
It would typically be most cost effective to have the solicitor who provided the independent advice assist as they will already be familiar with the background.
1. Attempt Resolution Through Communication
Before taking legal action, it's advisable to attempt direct communication with the other party or via your solicitor.
Misunderstandings or financial hardships may be at the root of the breach, and a discussion could lead to a resolution without dispute at court.
Written communication, such as emails or messages, can also serve as evidence if legal steps become necessary.
2. Engage in Mediation or Dispute Resolution
If direct communication does not resolve the issue, the next step is to explore mediation or family dispute resolution (FDR). A neutral third party, such as a mediator or family law professional, can facilitate discussions and help both parties reach an amicable agreement.
Mediation is particularly useful when disputes arise regarding parenting arrangements, as the Family Law Act encourages parents to resolve conflicts outside of court whenever possible.
3. Seek Legal Advice
Obtaining legal advice is crucial. A family lawyer can assess the breach, determine your legal options, and guide you on the best course of action.
Depending on the severity of the breach, your lawyer may send a formal legal notice to the non-complying party, warning them of potential legal consequences if they fail to honour the agreement. This step often encourages compliance without requiring court intervention.
In some circumstances it may not be about honouring the agreement but rather that the agreement is invalid due to material error such as serious failure to comply with the disclosure requirements that underpin the basis on which the terms of the BFA were agreed.
In such cases, there may also be serious consequences for the non-complying party. So, it is important to ensure that you follow your solicitor’s guidance during the process of negotiating the BFA and be transparent about your assets and liabilities.
4. Apply to the Court to Enforce the Agreement
If all other methods are unsuccessful, court intervention may be necessary to enforce the BFA or court orders, or obtain a ruling as to the impacts of any non-disclosure or coercion in the making of a BFA. The appropriate legal process depends on whether the agreement is a BFA or a Consent Order approved by the court.
A. Enforcing a Binding Financial Agreement (BFA)
If a Binding Financial Agreement is breached, you can apply to the Federal Circuit and Family Court of Australia to enforce its terms. However, for the court to uphold the agreement, it must meet all legal requirements, including fairness and full financial disclosure.
In some cases, the court may find the agreement invalid if it was signed under duress, fraud, or misleading circumstances. If the agreement is upheld, the court can order compliance, impose financial penalties, or even award damages.
B. Enforcing a Consent Order
A Consent Order is a legally binding document issued by the court, covering financial settlements and parenting arrangements. Because it carries the authority of the court, failure to comply with a Consent Order is a serious legal violation.
To enforce a breached Consent Order, you can:
Apply to the court to compel compliance.
Request compensation if the breach resulted in financial loss.
Seek legal penalties, including fines or, in extreme cases, imprisonment for contempt of court.
The court may also vary the order if it determines that circumstances have changed significantly and it being necessary to maintain a fair outcome for the parties or preserve the best interests of any children.
Enforcing Parenting Orders in Queensland
If the breach relates to parenting orders, such as failure to comply with time spent arrangements, the affected parent can apply to the court for enforcement. The court has various enforcement measures, including:
Ordering make-up time with the child.
Mandating attendance at a post-separation parenting program.
Imposing fines or, in severe cases, issuing community service orders or imprisonment.
The court will consider whether the breach was intentional or if the party had a reasonable excuse before imposing penalties.
Preventing Future Breaches of a Separation Agreement
To minimise the risk of breaches, consider the following:
Ensure the Agreement Is Legally Sound – Work with a family lawyer to draft a clear and enforceable agreement from the outset.
Keep Detailed Records – Maintain documentation of payments, correspondence, and interactions related to the agreement.
Include Dispute Resolution Mechanisms – Consider adding a clause requiring mediation before court action.
Review and Update the Agreement – If circumstances change significantly, formalise necessary modifications through a Consent Order.
Communicate – where possible, maintain open, frank and transparent communication with your prior partner. This allows each party to understand if and when circumstances change, and can help parties navigate any minor non-compliance in an amicable and reasonable way without the need for court intervention.
Protect Your Rights When Enforcing a Separation Agreement
If your former partner is failing to comply with your BFA or Court Order, you have legal options to enforce it under family law. Whether through negotiation, mediation, or court intervention, taking the appropriate legal steps ensures that your rights and financial security remain protected.
If you need professional legal guidance on how to enforce a separation agreement, Drakos & Company Solicitors can provide prompt and personalised advice. Contact our experienced family lawyers today to discuss your situation and explore the best course of action.