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Property settlement after separation or divorce

If you’ve recently separated or are planning to do so, it’s important to settle financial matters between you and your partner. While some separations can be amicable and parties may quickly agree on asset division, many situations are more complex. This includes matters where there are overseas assets or connections. Both amicable and complex property settlements are handled with advice from a family lawyer. It can help to ensure you have considered all scenarios and have a good understanding of your entitlements.

When separating parties have complex asset structures it can be difficult to know where to start. Getting advice early will give you clear guidance on your personal circumstances and clarity to how your matter would be settled if it proceeded to court. Whilst most cases settle well before court it is important to understand the legal framework and how judges decide on the division of assets. This informs you of what an equitable family law property settlement looks like.

Starting with the right advice enables you to make the informed decisions about your financial future and to make plans with more certainty. Read further below on the criteria that are considered when dividing assets.

Determining the asset pool can be complicated. If you are uncertain about your entitlements or feeling that the split is unjust you should seek advice from one of our experienced property settlement lawyers in Sydney. At PCL Lawyers our family lawyers are experienced in handling property settlements with complex assets such as businesses and trust structures. We are experienced and rigorous in protecting our clients’ interests.

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What if You Reach an Agreement on Your Family Property Settlement Privately?

If you and your partner agree on how to divide your family property, you can formalise the agreement by either obtaining consent orders or entering into a Binding Financial Agreement (BFA).

Failing to take any action may leave both former partners vulnerable to potential future claims by the other party. There is also the risk that one party reduces the assets or increases the debts in the asset pool. To avoid issues, it’s highly recommended that you promptly address financial matters soon after separation.

What is a Binding Financial Agreement (BFA)?

A Binding Financial Agreement, or a BFA, is a legally Binding Financial Agreement that outlines the division of property, superannuation, and spousal maintenance if applicable. This method is often cost and time-effective in formalising how the separating parties will divide their assets, BFAs are not scrutinised by the Courts. However, a BFA is not as enforceable as consent orders, which require a more detailed assessment of assets, debts, future needs and financial circumstances and are scrutinised by the Court.

If you were in a de-facto relationship at the time of separation, these matters must be addressed within two years of separation. If you were married, it must be done within 12 months after the divorce. BFAs require each party to seek independent legal advice to be considered legally binding.

What if There’s no Agreement on How to Divide Assets, or You Think You Deserve More?

A family lawyer can help you determine your entitlements. A preliminary assessment of your position is needed to ensure you have a favourable outcome. This can be in contrast to what their former partner or spouse may be proposing they do.

It will give you a fair analysis of the costs of any legal action required and the timeframe of how long it will take to achieve a result.

What’s the Next Step After a Preliminary Assessment?

After a preliminary assessment is made, your family lawyer will draft a letter to the other party or their solicitor (if legally represented) to outline your position and propose a fair settlement. If you’ve already received a letter from the other party, your lawyer will respond on your behalf.

Once correspondence between the parties has started, an agreement can be worked towards. The final agreement will be drafted by a family lawyer to ensure it will be legally binding.

Is Going to Court Inevitable?

The Federal Circuit and Family Court of Australia (Family Court of FCFCOA) has encouraged clients to work together to with their legal representation to settle before court proceedings. Property settlements can be settled via negotiation and mediation and court proceedings are considered to be a last resort.

Most cases settle during legal proceedings before court appearances. However, if the parties can’t agree on how to divide the asset pool, legal proceedings may be necessary.

Another reason why legal proceedings may be initiated is if the other party refuses to engage constructively or promptly, making it the only way of progressing. Legal proceedings can encourage the other party to engage in settlement discussions and work towards a resolution.

What Happens if the Matter Goes to Court? 

In the event that the matter proceeds to court, the division of assets will be evaluated and decided based on what’s considered “just and equitable”. It’s essential to remember that what one person may see as fair may not be how the Court sees it.

Our property settlement lawyers in Sydney will assess at the beginning what the likely division of assets awarded by the Court will be and provide advice accordingly. If possible, other avenues such as negotiation and mediation will be used to achieve your desired outcome with minimal or no court involvement.

We’re Here to Help 

If you require assistance in navigating the process of dividing your property after a separation, or if you have unique circumstances that need to be addressed, our family lawyers in Sydney are here to help.

With extensive experience in assisting individuals with both simple and complex property settlements following a separation, we can provide valuable insights into how the Court may view your specific situation. No matter the complexity of your assets, we offer quality family law advice.

Please feel free to call us on 1300 907 335 to speak to one of our family lawyers or fill out our confidential enquiry form for a prompt response.

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