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Obtaining legal and financial information regarding property settlement issues will empower you to make better decisions for your future.
Relationship breakdown is a painful and disruptive time. And the emotional upheaval is compounded by the need to negotiate and finalise parenting and property settlement arrangements.
While most couples resolve things satisfactorily and move on with their lives following divorce or separation, it takes time, as the legal process is complex and can be emotionally draining.
Obtaining legal and financial information regarding property settlement issues will empower you to make better decisions for your future. If safe to do so, it is generally best if separated couples can make their own arrangements regarding financial and property adjustment matters. Not only will making your own agreement benefit all family members, but you will also save money, time, and stress.
Property settlements and financial adjustments are complex areas of family law. Legal advice will help you to understand your options, rights and responsibilities.
Consulting an experienced property settlement lawyer will ensure you achieve a resolution quickly with minimal emotional and financial stress.
Your property settlement solicitor at CLO Lawyers Toowoomba will provide valuable assistance in determining how the family law property settlement process applies in your particular circumstances.
You will also be advised about family dispute resolution options and the best method of achieving finality once an agreement is reached.
Contact CLO Lawyers Today To Arrange Your Consultation With A Dedicated Family Lawyer.
Property Settlement in Australia
The Family Law Act 1975 sets out the general principles the Court considers when deciding financial disputes after the breakdown of a relationship.
The general principles are the same for couples previously in a marriage or a de facto relationship.
How your assets and debts will be shared between you will depend on the individual circumstances of your family.
Divorce is a separate process from financial proceedings. Either party can apply for a divorce after being separated for 12 months.
The process for the determination of a property settlement is as follows:
- Identify the family assets and debts owned individually, with another person, or by a family trust or company and calculate what they are worth;
- Consider the direct financial contributions by each party, such as assets or savings contributed or wage/salary earnings;
- Take into account indirect financial contributions by each party, such as gifts and inheritances;
- Consider the non-financial contributions to the relationship, such as renovations to a home, caring for children, management of investments, and homemaking;
- Calculate the future needs of each party by considering their age, health, financial resources, obligations to care for children, and ability to earn; and
- Lastly, consider the general fairness of the distribution of assets and liabilities based on the above.
Funding Options for Legal Fees
Want to keep your matter moving without paying everything upfront?
CLO Lawyers recommends JustFund for legal fee funding in property settlements.
Division Of Property: A 4-Step Process
Step 1
Identify and value all assets, liabilities, and financial resources whenever and however acquired.
In many cases, this is a simple part of the process. However, in some instances, particularly those involving businesses, the valuation exercise can be complex, requiring the involvement of specialist experts.
Step 2
Consider what each person has contributed to the relationship.
This can include:
- Direct and indirect financial contributions to the property of the parties;
- Direct and indirect non-financial contributions to the property of the parties; and
- Contributions to the welfare of the family, including contributions in the capacity of homemaker or parent.
Step 3
Assess the future needs of each party.
This includes:
- The age and state of health of each of the parties;
- The income, property, and financial resources of each of the parties and their capacity for employment;
- Who has the care of any child of the relationship under the age of 18 years;
- Commitments necessary to enable a party to support themselves or any other person that the party must maintain;
- The eligibility of either party for a pension or superannuation;
- The standard of living that is reasonable in the circumstances;
- The extent to which the earning capacity of a party has been affected by the relationship; and,
- If either party is living with somebody else, the financial circumstances of their household.
These factors will determine any adjustment required to compensate for any difference in future circumstances.
Step 4
After applying steps 1 to 3, consideration must be given to whether the proposed division of assets is fair.
This assessment is done by holistically examining the circumstances of each case.
Time Limits For Applications For Property Settlement
For married couples, an application for property adjustment must be made within 12 months of the divorce becoming final.
Suppose you were in a de facto relationship. In that case, your application for property adjustment must be made within 2 years of the breakdown of your relationship.
If you do not apply within these time limits, you will need special permission from a court. And an extension of time is not always granted.
Reaching An Agreement Regarding Property Settlement
Suppose you and your ex-partner agree on a property settlement arrangement. In that case, you can document it in one of the following ways:
- Make an informal agreement
- Apply to the Court for consent orders
- Enter into a binding financial agreement (BFA).
An informal agreement will not be binding.
Consent orders and a binding financial agreement are legally enforceable.
Informal Agreements For Property Settlements
You can enter into a written or unwritten, informal agreement about how you will divide your property. However, this isn’t recommended as it’s not legally binding or enforceable by a court.
Consent Orders For Property Settlements
Consent orders are an agreement between separated parties approved by the Court.
Consent orders for property settlement are legally binding (enforceable) on the parties in the same way as any other court order.
The Court will not approve consent orders unless satisfied that the agreement contained therein is fair and equitable.
Financial Agreements For Property Settlements
Married or de facto couples can make legally binding (enforceable) financial agreements (BFAs) regarding their property and finances.
A BFA can be made before, during, or at the end of a relationship.
Financial agreements made before marriage, or a de facto relationship are often called ‘pre-nuptial’ agreements.
Each person’s lawyer must provide a signed document saying independent advice was given.
