Property & Financial Division
After a couple separates, the division of property interests between the parties usually needs to be agreed and finalised. This is referred to as a family law property settlement and can be challenging, especially given the emotion resulting from a break-up and the practicalities of having to establish two separate households. We can help you through this difficult time, explaining your rights and working towards a solution that is fair and reasonable.
When can I obtain a property settlement?
A property settlement involves dividing assets, financial resources, and debts between a couple whose relationship has broken down. It legally finalises the parties’ financial affairs and enables them to move on with their respective financial activities.
You can start making arrangements to finalise a property settlement as soon as you separate. You don’t need to have a finalised divorce before settling your financial affairs, and de facto couples are also eligible for property settlements under family law legislation.
You should, however, be aware of the following time limits that would normally apply for property applications made to the Federal Circuit and Family Court of Australia:
- for de facto partners, any court proceedings for a property settlement must be commenced within 2 years of separation
- for married couples after a divorce is finalised there is a 12-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance
Negotiating a fair property settlement
When determining a property settlement, the family law system in Australia provides that each party should receive a fair share of the joint property pool. Determining what is “fair” depends on what each party brought to the relationship, how each person contributed during the relationship, and each party’s future economic needs.
The asset pool needs to be carefully identified and, if necessary, valued so that there is a comprehensive list to form the basis for negotiation and distribution. Property is given a wide definition and includes real estate, shares, bank accounts, superannuation, businesses, trusts and companies. We can help you identify and compile the necessary information to quantify the asset pool, including obtaining valuations from experienced and respected experts.
After the property is identified and valued, the parties’ contributions are assessed. It is important to know that paid employment is not the only thing considered a contribution to a relationship. Family law also recognises non-financial contributions, which include childcare and domestic duties, are considered necessary to achieve financial goals.
After contributions are assessed, regard must then be had to the respective financial viability and circumstances of the parties in light of their future needs.
Finally, the property adjustment is made to ensure a fair outcome, or what is deemed “just and equitable”.
Pre-action Procedures for Property Matters
The Family Law legislation sets out requirements for parties to undertake property settlement negotiations prior to commencing Court proceedings seeking property Orders. These requirements include making offers of settlement and, if there is no agreement reached through this process, then to engage in mediation. We can assist clients to engage in these pre-action procedures.
Finalising your agreed property settlement
If an agreement is reached it can be formalised in consent orders or a binding financial agreement to give finality to your matter.
Consent orders are filed with the court on application of the parties. You will not usually need to attend court to have the orders made and, if the proposed orders are considered just and equitable, the court will grant them which means they will be legally binding.
A binding financial agreement may also be used to settle the division of your property however, some lawyers recommend consent orders as a more formal way to finalise your property affairs.
We can liaise with your ex-partner’s lawyers using the above steps to achieve a negotiated property settlement. If an agreement cannot be reached, then we will see your case through the court system to a successful conclusion. In many cases where court proceedings are commenced, property matters are settled at or shortly after the conciliation conference. When parties reach agreement, the matter can be immediately finalised.
Spousal maintenance
The Family Law Act provides that spouses and de facto partners have an obligation to maintain and support each other even after a relationship has broken down. Spousal maintenance means that one person from a former relationship provides financially for the other.
After a separation or divorce, there may be an imbalance in the capacity for former partners to support themselves. For example, there may be a disparity in income because one spouse was the primary breadwinner while the other gave up their career to contribute to the relationship in other ways.
If you are not in a position to support yourself after separation or divorce, and your former partner is in a financial position to provide support to you, you may be eligible for spousal maintenance. Often parties resolve a claim for spousal maintenance by agreeing to a lump sum payment, rather than periodic payments. Time limits apply for seeking spousal maintenance and we can provide advice based on your individual situation and, if necessary, make the necessary application to the Federal Circuit and Family Court of Australia.
If you need any assistance, contact one of our lawyers at [email protected] or call 1300 704 064 for a no-obligation discussion and expert legal advice.