Property Settlement
At the end of a relationship or marriage, the property of the parties may need to be adjusted between them to reflect contributions made by each during the relationship, taking into account each of their likely future circumstances. Property taken into consideration may include real estate, shares, savings, cars, business assets and superannuation.
This can be a challenging task if people can’t reach an agreement about the division. If negotiations are unsuccessful, the Family Law Courts have power to alter the interests of each party in property they own. There are a range of matters which the Court must consider before making an order adjusting the property interests of the parties, including:
- Financial contributions – whether direct or indirect, to the purchase, upkeep or enhancement of an asset.
- Non-financial contributions – to the acquisition, conservation or improvement of property;
- Contributions to the welfare of the parties or family – including contributions to the care and support of each other and as a parent;
- Any impact upon the earning capacity of each party as a result of the proposed order;
- Future considerations – including such things as the health of each party, their income and earning capacities and whether either has responsibility to care for or support a child;
- Equity and fairness – whether in all the circumstances, the proposed order is “just and equitable”.
Each case is different and the determinations of the court are based upon many considerations. In addition, the discretion of the Judge is guided by previous decisions made by the courts. While it may seem alluring, there are serious risks associated with informal property settlements. Obtaining legal advice to understand and guard against those risks is essential.
Members of the DDCS team are specialists in property settlements, from drafting agreements to securing complex outcomes in court. We have extensive experience providing key insights into how the legal system operates in this field. Our specialists are both tenacious negotiators and strong litigators, making them an invaluable asset to your matter.
What if we want to do it ourselves?
It’s understandable that most people hope to agree on a property settlement between them without external assistance. However, receiving advice from expert family lawyers is a protective and essential part of that process – knowing your rights and entitlements before you begin your discussions is the best way to pursue negotiations. DDCS Lawyers can provide advice about the likely range of outcomes if you were to go to court, so that you have guidance in your negotiations with your ex.
We can also informally negotiate on your behalf or use a number of specific dispute resolution methods, including Mediation and Collaborative practice
We’ve reached an agreement, now what?
Once agreement is reached, the terms of your agreement should be set out in a formal document. This allows you to protect your interests, create certainty and formally end the financial relationship between you and your former partner.
Consent orders are the most common way of formalising the settlement of property once you’ve reached an agreement. By asking the court to make orders by consent, you are ensuring that your agreement is legally enforceable. For property consent orders, the Registrar of the Court must be satisfied that the orders are “just and equitable”. Making consent orders is a cost effective way to formulate the deal you have made.
Your property agreement can also be formulated in a Binding Financial Agreement
Depending on your situation, DDCS can flexibly assist you in achieving your desired outcome.
What if an agreement just isn’t an option?
If you can’t reach agreement about a property settlement, one person may make an application to go to court. In doing so, certain documents must be filed, including an application setting out the orders you want the court to make, a financial statement to provide a snap-shot of your financial situation and in some instances, an affidavit providing evidence relevant to the matters before the court.
In all financial matters, the court will require the parties to attend a formal mediation process – either a conciliation conference at the court conducted by a Registrar of the Court, or a private mediation where the parties engage a private mediator and meet that cost. If an agreement still cannot be reached, directions are made to prepare the case for a final hearing in due course.
The date of the final hearing may be 18 months to 2 years after the court documents were first filed.
Steps to get ready for the final hearing include obtaining valuations of property in dispute, including real property, businesses and superannuation interests. Further affidavits will be required, setting out the relevant evidence, to help the Judge make the orders you seek.