Property Settlements: Sorting out Financial Matters after Divorce or Separation

Get concise legal advice about how to divide your assets when separating before it is too late. Understanding what you may be entitled to in a separation or divorce is crucial. It can be complex to calculate as each case is different. There are also many criteria that go into deciding what the property split should be in financial settlements.

A family lawyer will be able to assist you and guide you make informed decisions about how a court decides. It is best for you to settle your financial matter before initiating court proceedings, but you will need to understand how property settlements work to make a reasonable settlement. If you do ultimately end up in court the judge will decide on what they see is a just and equitable settlement.

To work out what a just and equitable settlement is there are four principles that are considered:

• what are the assets, liabilities and superannuation interests that you are your former partner have;
  This includes things such as your home, any investment properties, cars and superannuation. Property has a very wide definition in the Family Law Act.
  Part of this task is considering the value of the various items to determine the property pool of assets. If there is a disagreement or you are unsure of a particular value then a valuation needs to be conducted. Our firm has contacts with many property and business valuers who can act quickly for you.
• Identify the contributions made by each party during the relationship;
  Looking at how the assets were acquired and maintained during the relationship is an important step. This respects what you have put into the relationship.
  Contributions also includes things such as non-financial or homemaker matters.
• Look to what needs you both have in the future; and
  Understanding each party’s income, health needs and care for any children are important. Family law focuses on not just what you have done financially during a relationship but also how you can support yourself, and what needs you have, moving forward.
• at the end of the day any decision made has to be just and equitable.

The task of reaching a property settlement involves a few different steps. We have experience on understanding the true nature of your matter and working with you throughout the process.

Binding Financial Agreements

You can settle your financial division of assets and debts via a binding Financial Agreement or BFA. Both parties negotiate the terms with or without a lawyer. A binding financial agreement does not have to be just and equitable and often times if not negotiated properly one party can be disadvantaged. You must obtain independent legal advice for the agreement to be legally binding.

Mediation and Alternative Dispute Resolution

If you can’t decide on how to divide your assets you can attend mediation. It is important to understand the process and have representation to assist you in the process. This will ensure that you are aware of your legal rights and that you can consider the outcome and have an experienced advisor assist you in making decisions.

Most matters will settle through negotiation and mediation however, some don’t and apply for a court order and having your matter heard at the family court is the only solution.

Property Settlements decided at Court

In more contested cases it is important to have the right legal representation so that your case is thoroughly organised and presented. Couples can often be fighting on two fronts being the financial settlement and children matters. Court cases can be sometimes unavoidable, but we take every step to ensure that you are well-advised and we fight to get your desired outcome.

Timeframes & Criteria for applying for financial orders

It is important that you act sooner rather than later in working out your division of assets after separating or divorcing as time limits apply.

For married couple you must apply within 12 months of your divorce becoming final.

For de facto relationships your application must be made to the court within 2 years of the breakdown of the relationship.

You can apply for special permission from a court if you are outside these timeframes, but it may not be granted.

FAQs

What am I entitled to?
Can my spouse ask me to leave the house?

What am I entitled to?

This can be the hardest thing to determine as there is no one size fits all. In the family court the judge will make the decision based on all the facts of your case and decide what is just and equitable.

There are principles that guide how assets are divided so that it is just and equitable such as:

Working out and establishing the value of what is in the property pool – both assets and debts

Looking at the direct financial contributions by each party o the relationship and earning potential

Indirect financial contributions such as gifts and inheritances

Non-financial contributions such as caring for the children and home duties

Future requirements such as health age, financial resources, care of children and earning capacity.

The principles are very exhaustive and it is very difficult for those who do not practice in property settlements in family law to determine what would be just and equitable. This is where a family lawyer can assist you in determining what a fair settlement would be and can make the path to a settlement faster.

Can my spouse ask me to leave the house?

One party cannot deprive the other party of their assets and property just because they are having a disagreement. In some disputed divorces or de facto separations a partner may be “kicked out” of the house or find the locks have been changed. If you are concerned you should make arrangements to sort out your childrens and financial matters quickly to protect your rights. It is best that you don’t threaten your wife or partner and that you take reasonable steps to resolve the dispute. If the police are called to resolve a dispute you may end up with a restraining order.