There are issues that can arise after a couple separate, concerning how their property or other assets will be divided. These issues can cause couples to quarrel, especially because monies and properties are involved, and people do not want to share what they believe is theirs.
What happens to our property after we separate?
When couples separate, they will usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done:
- you and your spouse or de facto partner can agree on how your property should be divided without court involvement.
- If you and your spouse or partner reach an agreement, you can formalise the agreement by applying for consent orders in Court and Fourtree Lawyers can assist you with this.
- If you and your spouse or partner cannot reach an agreement, Fourtree Lawyers can assist you with applying to Court for financial orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.
Are there any laws about dividing property?
The Family Law Act 1975 regulates how property should be divided between couples who have been married; and between couples who were in a de facto relationship.
If you are in a same-sex relationship, you are seen as being in a de facto relationship for purposes of a property settlement under the Family Law Act.
How do you work out what is fair?
When you apply for a property settlement, the Court determines the application through a “4-step” process.
Step 1 – Identifying and valuing the assets and liabilities of the parties
The first step involves identifying and valuing all current assets and liabilities of the parties, regardless of whether they are held in joint names or solely.
Assets include property, businesses, motor vehicles, savings, shares, superannuation and any other items considered of value.
Liabilities include mortgages, finance over assets, credit card debt, personal loans, tax debts and any other debt or loans accumulated either jointly or solely by the parties.
From your assets and liabilities, Fourtree Lawyers can work out approximately how much money is available in your asset pool to be divided.
Step 2 – Assessment of the contributions made by the parties
When determining a property settlement, the Court will consider the contributions made by the parties at the commencement of, throughout and after the conclusion of their relationship. These include:
- These are often monetary contributions from either party and can include wage and salary earnings, inheritances, redundancies, compensation payments, gambling wins and gifts from friends or family.
- These are often caring for the children, homemaking and home improvements made by the parties.
Step 3 – Assessing the future needs of each of the parties
The Court will consider the future needs of the parties when making a property settlement. The matters to be taken into account are::
- The age and health of the parties
- The parties financial circumstances
- Accessibility to government benefits or superannuation pension
- Care of a child of the relationship under the age of 18
- Care for any other child or person
- A reasonable standard of living for each party
- Relationship duration
- The financial circumstances of any new partner
- Terms of any other financial agreement
- Any child support payable
Step 4 - Is the proposed division of property fair to both parties?
The fourth step involves a global view on whether any proposed division is just and equitable. This assessment is done by examining the full circumstances of each case. Any proposed division is unique to your own circumstances.
What happens with Superannuation?
Generally, there is an equalisation of the total superannuation pool accumulated throughout the relationship. However, you can negotiate a different superannuation split, provided it will still result in a just and equitable outcome.
When should I start my property settlement?
You can start your property settlement as soon as you separate. Many couples choose to finalise their property settlement as soon as possible after separation. Generally, a property settlement is determined from current assets and liabilities, not from the assets and liabilities at the date of separation.
Is there a time limit on my property settlement?
- If you are a married couple, you must commence proceedings within 12 months after your divorce order is granted;
- If you are a de facto couple, you must commence proceedings within 2 years after the date your relationship ended.
- If you do not apply within these time limits, you will need to seek leave from the Court to commence legal proceedings. The Court will not grant leave to proceed out of time unless a party or child to the relationship would be caused hardship if leave were not granted.
What do I need to begin a property settlement?
Under the Family Law Act and associated Court Rules (Family Court Rules or Federal Circuit Court Rules), each party has an obligation to make full and frank financial disclosure of their direct and indirect financial circumstances.
The duty of disclosure extends to all assets, liabilities and financial resources that you have an interest in. You are also required to disclose all information relating to any property that you have disposed of post-separation or in the 12 months immediately prior to separation. You will be required to explain any increase in any liabilities since separation.
We generally request that you provide tax returns and notices of assessment, statements for all bank accounts that you hold, details of any shareholdings, superannuation statements, valuations of any property that you own, including houses, motor vehicles or any other assets, statements for all liabilities including bank mortgages and loans, credit card debts, personal loans, and any other liabilities of the relationship.
Fourtree Lawyers will be able to assist you with collating your financial disclosure documents.
How do you finalise a property settlement?
If you and your former spouse or partner have agreed on a property settlement, we can complete an Application for Consent Orders on your behalf. With an Application for Consent Orders, provided the terms of the agreement are just and equitable, there will be no requirement to attend court.
If you and your former spouse or partner cannot agree, Fourtree Lawyers can explain various options available to you, including mediation and court proceedings. The Family Law team at Fourtree Lawyers has significant experience in alternative dispute resolution and court matters for property and parenting matters.
Why Fourtree Lawyers?
At Fourtree Lawyers, we have skilled lawyers in all aspects of family law who can assist you with your property settlement dispute, no matter what stage your matter is at.
Whether providing advice to you on your options, assisting you in negotiations with your spouse or ex-partner, or representing you in Court, Fourtree Lawyers aims to ensure that you obtain your rightful property entitlements.
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