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Family Law Property Settlement (post Separation)

If you have separated, or plan to do so, you will need to finalise financial matters between you.

Sometimes the separation or divorce is amicable and the parties agree on the division of assets quickly. Oftentimes the parties cannot agree as these matters are complex and most will want to obtain legal advice when wondering “where do I stand?”.

Working out the asset pool is complex in itself and it may be that you are unsure of what you are entitled to or you may feel that the split is not fair. Either way, getting the right legal advice from a professional property settlement lawyers is crucial to getting the best result and what you are entitled to.

Family Law Property Settlement

What if you agree on your family property settlement between yourselves?

If you agree on how your family property is to be divided, it is common for parties to either enter into a binding financial agreement or obtain consent orders.

To do nothing, may mean that both former partners are left open to a later claim by the other. This can be especially problematic if a party diminishes the assets, or increases debts, in the asset pool. Hence it is always best to address the financial issues promptly post-separation.

What is a Binding Financial Agreement?

A binding financial agreement, BFA, is an agreement which covers the division of property, superannuation and if required, spousal maintenance.  A binding financial agreement is an agreement which covers the division of property, superannuation and if required, spousal maintenance. This can be a very cost effective and time effective method of formalising how the parties divide the assets. Consent orders require a more detailed assessment of the assets and debts and the future needs and financial circumstances of the separating couple. As a general rule, they have a higher degree of enforceability.

In any case, if you have been in a de-facto relationship at the time of separation, you need to address these matters within two years of separation. If you have been married, you must do so within 12 months after your divorce. BFAs require independent legal advice for each party for it to be legally binding.

What if there is no agreement on how to divide the assets - or you think you deserve more?

Legal advice can help you determine what you might be entitled to. Sometimes our clients are surprised when they first meet with us and we make a preliminary assessment of their position – that is, the picture is often a lot more positive than they thought. This can be in stark contrast to how much their former partner or spouse is suggesting they should agree to.

What happens after a preliminary assessment has been made?

The first step is for your family lawyer to write to the other party or their solicitor, if legally represented, and set out your position. This would include what you think a fair settlement would be. Sometimes, clients come to us having received a letter along these lines already and, as your lawyers, we would respond to that.

Once correspondence has begun between the parties an agreement can be worked towards or reached. It is then drafted by a family lawyer to make sure that it is legally binding.

Is Court Inevitable?

By no means is going to the Federal Circuit and Family Court inevitable. Most cases can resolve without legal proceedings or through a formal mediation. This really just depends as to “how far” away the parties are from each other in terms of reaching agreement. If the disagreement about how the asset pool should be divided is vast, and the amount of money involved is significant, this is typically when legal proceedings are commenced.

The other reason that settings are commenced in relation to property matters when the other party refuses to engage constructively or promptly and it just becomes the only practical way of moving forward. Legal proceedings will have the effect of acquiring the other party to engage properly in settlement discussions.

What if the matter goes to Court?

If the matter goes to Court, the division of assets must be assessed and determined to be “just and equitable”. It is important to remember that what one sees as fair, may not be how a court sees it. Hence, we consider that it is smart to assess at the start what may be the likely division of assets awarded by a court and use that as a basis for providing advice as to what is a likely outcome. If possible we try to achieve that outcome with minimal, or in some cases, no court involvement using other avenues such as negotiation and mediation.

We Are Here To Help…

To discuss your particular circumstances, or if you just need help sorting out how to split your property following your separation,

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. This will help you assess you 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.

To speak to a family lawyer call us on 1300 907 335 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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