If you and your partner are separated, or plan to do so, you will need to finalise your finances, property, assets, and liabilities. This can be a complex process, particularly if you have significant property, assets or debt. Our property settlement lawyers can help you to divide your property and assets fairly and equitably.
The procedures, rules and law addressed in the Family Court formally now known as the Federal Circuit and Family Law Courts of Australia or FCFCOA are constantly changing. The court processes require a diligent and thorough approach and lawyers who thoroughly understand the practices and nuances of the Family Court.
In many cases family law settlements are more complex. Often, divorcing partners often disagree about the assets – and indeed really shouldn’t agree until they have had legal advice from a suitably qualified lawyer.
Sometimes the separation or divorce is amicable and you can reach an agreement on the division of property and assets quickly. Even if you and your former partner can reach an agreement on some matters related to your separation, it is still important that you obtain legal advice. This will ensure that agreement is properly recorded and enforceable in a court.
Working out the asset pool of a relationship is a difficult task on its own, therefore, it is important to understand your rights and obligations under the law. Attending to this before making any decisions about your separation will assist in your decision-making process and planning for the future.
Getting clarity on your property division is one of the main priorities for separating couples after they have considered any children’s matters they may have. Parenting matters are usually dealt with alongside your financial division of assets but are finalised under specific legal principles with the “best interests of the child” being paramount.
Our property settlement lawyers can help you to understand the law and how it applies to your specific circumstances and obtain the best result for you. Children and other circumstances unique to you will determine how your assets are divided in your divorce or separation.
We help family law clients with the following property settlement matters:
Where partners have agreed on how their property and assets are to be divided, that agreement is commonly recorded in a binding financial agreement. In addition, you can apply for a consent order made by the Family Court. While this can be a cost-effective method when a relationship has ended, it is essential that this agreement is properly recorded so that it is enforceable, and our property settlement lawyers can ensure that your agreement is valid and protects your rights.
A binding financial agreement, or BFA, is an agreement which clearly sets out the details of a property settlement and how the assets of a relationship are to be divided. A BFA covers amongst other things, the division of property, superannuation and, if required, spousal maintenance. When properly drafted, a BFA will be the key document recording each party’s final position on how property and assets are divided, where superannuation is paid and, if required, any spousal maintenance.
Legal advice from our property settlement lawyers can help you to determine what you are entitled to. We often advise clients who are unaware of their true position, which can often be in stark contrast to what their former partner or spouse is suggesting they should agree to.
Our property settlement lawyers can make a preliminary assessment of your position and commence communications with your former partner, or their lawyer, on your behalf. In the early stages of separation, there can be a desire to agree to a settlement and end the relationship quickly. Our property settlement lawyers can represent you to make sure that any agreement caters for your needs, and formally record that agreement in a way which is legally binding.
By no means is going to Family Court inevitable and, if it is necessary to go to court, most cases are often resolved through formal mediation or without the need for trial. The need for court proceedings will depend on how far apart the parties are from reaching an agreement. If the disagreement is about a large pool of property and assets, and the amount of money involved is significant, then proceedings may be necessary.
If proceedings are necessary, the Court will determine whether the division of assets between the parties must be assessed and determine whether it is “just and equitable”. It is important to remember that the Court has its own methods of determining what is just and equitable.
Therefore, we consider that engaging our property settlement lawyers at an early stage in your separation will help you understand what outcome you might achieve in court.
The four legal criteria used to determine how assets are divided will determine a party’s claim to financial assets are as follows:
The asset pool includes everything that the parties own, including real estate, shares, trust assets, businesses, cars, boats, tools, jewellery, and cash. It doesn’t matter whose name the assets are in. Even personal belongings may be included, if they have a value. This is because the Family Law Act 1975 includes all types of assets, regardless of who they are owned by.
In our experience, some clients can be worried that they don’t own anything because nothing is in their name. However, this is not as relevant as many people think. All the assets are included in the property pool.
Our property settlement lawyers can help you take steps to prevent the registered owner of those assets from selling or otherwise disposing of those assets without your consent.
Financial and non-financial contributions during the relationship and the property of the relationship are relevant to property settlements. The law recognises that different partners bring different financial and non-financial assets to a relationship. As a general rule: the longer the parties are together, the less relevant the assets that the parties owned prior to the relationship becomes. For couples who have been together for 10 years or more, it is in most cases practically irrelevant.
Non-financial contributions, such as childcare, housework, and eldercare, are just as relevant as financial contributions. In longer relationships, there is usually not much adjustment either way – with notable exceptions in short term relationships, where there are no children or if one party had substantial assets by comparison when entering into the relationship. All these factors will need to be weighed in the balance.
Both financial and non-financial contributions during the relationship are important factors in property settlements. The Court will consider all relevant factors when determining how to divide the property pool.
Future needs adjustments can have a significant impact on property settlements. These adjustments are made to account for the different financial needs of the parties after the separation.
Some factors that the law considers relevant when assessing future needs adjustments include:
For example, if one party has an illness or injury that reduces their earning capacity, they may be entitled to a future needs adjustment. Similarly, if one party has sacrificed their career to raise children or care for a sick relative, they may also be entitled to a future needs adjustment.
It is important to carefully evaluate all of the relevant factors when assessing any future needs adjustments. If you are unsure about your rights, you should seek the advice of our property settlement lawyers.
The Family Court will consider the individual circumstances of each case when making future needs adjustments. This means that one party may realistically need more funds, while another party may appropriately receive assets later. For example, a party with a strong earning capacity may be able to receive a smaller share of the assets immediately, with the expectation that they will be able to generate enough income to meet their future needs and re-establish themselves financially.
Our family lawyers have helped many people through their property settlement following a divorce or separation. We understand the nuances in simpler and more complex asset divisions and can help you understand the lens the court may apply to your individual circumstances.
We can help advise you at any stage, from if you are only considering divorce or have been recently separated.
Getting advice will help you assess your situation and resolve the matter faster. Whether you have a simple asset division or have family businesses and more complex assets structures we can provide the highest quality family law advice.
Relying on expert advice is essential in family law matters and will help you understand your and your partners rights, so you have some clarity on your particular situation.
To discuss your circumstances, or if you just need help sorting out how to split your property following your separation, please contact our office.
To speak to a family lawyer call us on 1300 794 559 or, alternatively please complete the enquiry form on this page and we will respond to you promptly. All enquiries are treated as confidential.
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