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mutual agreement on divorce

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help123 View Drop Down
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Joined: 10/December/2017
Location: Australia
Posts: 2
  Quote help123 Quote  Post ReplyReply Direct Link To This Post Topic: mutual agreement on divorce
    Posted: 10/December/2017 at 16:45
My wife wants to come to an agreement that she will give me our only 6 year old child to my custody but she will not take any property or cash. I have parents and so before remarry they will help me to raise my child. If we agree on this can we settle this out of court without lawyer? If not will Judge force her to take cash? She has job and she is more younger than me. Do I need lawyer for making the agreement? As there is mortgage property and child custody involved, will it be a joint application or it will not be a joint application?

Helpingafriend View Drop Down
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Joined: 20/July/2013
Location: Australia
Posts: 20
  Quote Helpingafriend Quote  Post ReplyReply Direct Link To This Post Posted: 10/December/2017 at 18:01
For property you could either lodge consent orders or make a Binding Financial Agreement. Consent orders you could DIY but the court will still need to agree the arrangement is fair and equitable.

A BFA requires each party to obtain independent legal advice.

For parenting you can lodge consent orders and the court will need to consider whether the proposal is in the best interests of the child. Court are unlikely to agree to one parent having no involvement with a child unless there are extenuating circumstances.

Also irrespective of whether parenting your child without the involvement of the mother is in the child's best interests - the fact that it appears that you expect assistance from your parents (I am going to ignore that you have mentioned remarriage) leads me to ask why you would not get help with parenting from the child's mother?

citizen-joe View Drop Down
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Joined: 09/October/2005
Location: Australia
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 11/December/2017 at 03:09
Originally posted by help123

My wife wants to come to an agreement that she will give me our only 6 year old child to my custody but she will not take any property or cash.

A child benefits from contact with both parents, unless there is a very good reason for the child to remain solely in your care, it is unlikely that any court will sanction the arrangement you have outlined.

Child care and property settlements are two separate matters, one does not effect the other, again a judge would want to hear good reasons for your wife to not receive a fair share of the joint matrimonial property.

I think that if you were to present a request for apparently consent order to the above, that the judge would order your wife to seek legal advice, so as to satisfy himself that she was making the request of her own free will and that she was properly aware of the consequences of such an order. He may even order her to undergo counseling to satisfy himself that there was not some underlying reason for the mother to apparently be abandoning her child and her share of the family assets.

help123 View Drop Down
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Joined: 10/December/2017
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  Quote help123 Quote  Post ReplyReply Direct Link To This Post Posted: 11/December/2017 at 13:27
Sorry that I didn't clarify the parenting matter. She is not abandoning child. She wants me to be primary carer. She will talk & meet child monthly basis till 18 years. Will it be OK?

The problem is with property share. Her father has many properties in overseas. Those overseas property are assets and not in mortgage. She doesn't want to sell any property in overseas. She doesn't want that both family fight over this property issue. I don't want to claim from her savings account also.

In this scenario, I think we should go with lawyer as Judge may not be satisfied.

Should we go with same lawyer or different lawyer?

If we mutually agree on property & child then will it be joint application? If not why it should be separate application?

citizen-joe View Drop Down
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Joined: 09/October/2005
Location: Australia
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  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 11/December/2017 at 15:28
Should be no problem if you provide the details of this in the consent agreement, if you are in agreement there is no reason why you should not use the same lawyer to draw up the documents for the court. Go to the lawyer together and explain to him what you both wish to do.

Helpingafriend View Drop Down
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Joined: 20/July/2013
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  Quote Helpingafriend Quote  Post ReplyReply Direct Link To This Post Posted: 11/December/2017 at 16:51
You cannot make a BFA unless you both get independent and separate legal advice

citizen-joe View Drop Down
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Joined: 09/October/2005
Location: Australia
Posts: 518
  Quote citizen-joe Quote  Post ReplyReply Direct Link To This Post Posted: 11/December/2017 at 17:30
He's not asking for a BFA, he wants a consent property settlement.

emca01 View Drop Down
Legal Guru
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Joined: 20/July/2012
Location: Australia
Posts: 2197
  Quote emca01 Quote  Post ReplyReply Direct Link To This Post Posted: 12/December/2017 at 15:42
You can just sell the assets, split the money however you choose. Same with the kid... After all it is your life. IF you agree just do it. Get divorced and after 12 months it is difficult to apply to court around assets.

Same deal with the child.... Make an agreement, it will not be legally enforcable BUT if both parties play along then there is no need for solicitors... I hope you guys can sort it. So much easier than crazy family law nonsense.

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