A question I often get as a family mediator in Perth is ‘is family mediation legally binding?’.
In this blog I’ll share the ins and outs of how to ensure your family mediation becomes legally binding and enforceable as part of your separation or divorce process.
What Is Family Mediation?
Family mediation is a voluntary process, where a family mediator assists couples to reach agreements about financial separation and future arrangements for their children without having an argument in the Family Court.
Family mediators do not take sides but remain impartial at all times, while explaining the legal rights and obligations to both parties. In appropriate cases, by providing general legal guidance they encourage and enable both parties to seek solutions and negotiate amicably towards reaching a practical settlement that is suited to their specific set of circumstances.
There are numerous benefits of divorcing through family mediation. Firstly, the settlement reached is the couple’s own settlement and not one handed down by a judge. It is also the most successful, quickest, least costly and least stressful way of divorcing or separating. Under the Australian family law, before commencing proceedings in Court when there are children under 18 years of age involved it is necessary in almost all cases to first attempt family mediation.
Is Family Mediation Legally Binding?
No agreement is legally binding and enforceable unless and until it has been approved by the Family Court (there is an exception with Binding Financial Agreements, but these require independent certified legal advice for all parties and certain other formalities to be complied with).
When you reach agreement on all your issues your family mediator will draw up a document called Draft Proposed Consent Orders (and any necessary attachments, like Asset & Liability Schedules).
Those documents would then be attached to an Application for Consent Orders to be filed in the Family court for approval When approved by the Court the terms reached at mediation become legally binding.
What Is An Agreement Reached At Mediation?
An agreement reached at mediation may cover all parenting, property and financial matters (but not child support issues which must be dealt with through the Child Support Agency). Once reached, either party may choose to take it to their own lawyers for a further opinion if they so wish, before signing it. Once the agreement is signed by both parties, it can be used as the basis of a parenting plan or for submit to the Court with the Application for Consent Orders, becoming legally binding upon approval.
Parenting Plans are agreed upon by both parents and do not need to be approved by the Court. The downside is that they are not legally enforceable, being better suited for couples expecting to maintain an amicable post-divorce relationship. Parenting Plans can be changed by mutual consent, if and when circumstances change.
If an amicable post-divorce relationship does not seem likely and there is a possibility that either party may not adhere to the terms of a Parenting Plan, obtaining Consent Orders provides a safer option. An experienced family mediator is well suited to advise on the best option for your circumstances.
What Is A Consent Order?
Consent Orders might desal all property and financial matters as well as parenting arrangements as agreed at mediation, but do not cover child support matters. They are approved by the Family Court and are, therefore, legally binding and enforceable, serving as strong deterrents to anyone contemplating breaching any of the terms.
Before a Consent Order is approved the Court must be satisfied that property division and financial terms are fair and equitable and, in children matters, are in the best interests of the children.
Consent Orders may only be changed by applying to the Court.
Consent Orders provide peace of mind, especially in complex financial matters, removing the threat of an ex-partner making further claims in the future.
What Is A Binding Financial Agreement?
A Binding Financial Agreement (BFA) is an agreement setting out the terms of how the assets will be split between the two parties in the event of a divorce or separation. A BFA can be made before a marriage (or de facto relationship) commences, during that relationship or when it finishes by separation.
They are custom made to suit a couple’s unique circumstances and do not deal with children’s or child support matters. A BFA does not need to be submitted to the Court, nor does it have to be “fair and equitable” as required in Consent Orders. A BFA, where properly draw up, will exclude the jurisdiction of the Family Court top determine financial distribution between parties.
Although BFAs are complex and time-consuming, they can provide peace of mind, certainty and finality, eliminating the possibility of either party making further claims in future. They must comply with strict formal rules and each party must obtain certified independent legal advice before signing.
Hopefully this blog has helped to answer the question of whether family mediation is legally binding.
If you have questions about family mediation or want to book a family mediation session for your separation or divorce, get in touch with Ian today.