Family Law Property Settlements
A property settlement involves the division of assets and liabilities between a de facto or married couple whose relationship has ended. The process can be relatively simple when the asset pool is straightforward and ex-partners are amicable. However, separation can involve high emotion, and dividing property can become protracted if the parties do not agree and/or there are complex assets, business interests, or trusts involved.
No matter what your circumstances, any agreement reached for the division of property should be consistent with the family law system, so it is legally binding. That said, you do not need to go to Court to formalise a property settlement and many couples are able to finalise their affairs with the assistance of their respective lawyers. We can help you negotiate a fair outcome for the division of your property and document your agreement in binding terms so you can move on with your financial life.
How is a property settlement reached?
Family law sets out a process for how to divide property fairly after a relationship breaks down. It is important to know that “fair” does not necessarily mean “equal”. The law looks at what each person:
- brought to the relationship;
- contributed during the relationship; and
- will need in the future.
The couple’s assets are “pooled”, including assets that are owned jointly and individually by each person. Property includes financial resources such as real estate, bank accounts and cash, shares and investments, motor vehicles, business and company interests, trusts, superannuation, furniture, and artwork.
“Contributions” to a relationship are not just from paid employment. Family law recognises that domestic contributions (whether this is childcare, household duties, or emotional and social support) are critical to the achievement of financial goals.
Formalising your property settlement
A formal, compliant agreement will finalise your financial affairs, help protect you from future claims and facilitate any applicable duty concessions, as relevant, when transferring certain property like real estate.
An application for consent orders may be filed with the Federal Circuit and Family Court of Australia. The parties do not need to attend Court. Full financial disclosure is required when preparing the application and proposed consent orders and, if the orders are considered just and equitable based on the information provided, the Court will grant them, so they are legally binding.
A financial agreement is a written agreement made between the parties that must comply with certain formal requirements for it to be enforceable. Both parties must receive independent legal advice before entering the agreement. The Court is not involved so does not “approve” the agreement. As such, it is generally considered that consent orders are a more formal way to finalise your property affairs.
We can advise on the pros and cons of each method of formalising any agreement reached with your ex-partner and prepare the relevant documents for you.
Going to Court
Going to Court is generally considered a last resort and it is usually best for all parties for a family law matter to be settled without litigation.
However, where the parties are unable to reach an agreement, they may need the Court to decide. If an application is filed with the Court, a number of steps must be completed in an attempt to settle your matter before trial. In property matters, the parties will have to attend a conciliation conference with a Registrar of the Court before appearing before a Judge.
If your matter proceeds to trial, it may take months before a final hearing is conducted. A Judge may make interim orders in relation to your matter (i.e., orders that stay in place until all evidence can be heard properly and final orders are made).
We can represent you if your matter goes to Court. We will guide you through the court process and advocate strongly on your behalf to protect your rights and achieve a fair outcome.
If you need assistance, contact one of our lawyers at [email protected] or call 02 6580 0199 for expert legal advice.