If so, the assets and liabilities of the relationship will need to be divided at some stage, perhaps the sooner the better. It is also preferable that the property settlement is achieved formally so that there can be no “second bite of the cherry” later on.
Our team of property settlement lawyers can assist you with achieving a property settlement that you deserve and make it “water tight”.
What is property settlement?
Property settlement is the process by which parties in a genuine domestic relationship (marital, de facto or same sex) on the division of their assets and if they do not agree how the Family Courts decide to divide those assets justly and fairly.
The Family Law Act 1975 (“the Act”) deals with the property of people who have been married or in a de facto relationship, including same sex relationships.
The role of the courts
The Family Court of Australia and the Federal Circuit Court of Australia were created under the Act to resolve disputes between parties to such relationships and they have very broad powers to make orders dealing with the interests that parties have in property.
It is simply not true that assets are divided 50/50 in all cases. The Act sets out the factors which must be taken into account to determine how property is to be divided. You will need to get advice from a property settlement lawyer in our firm to assess how the Act applies to your situation.
What property is included?
“Property” is very broadly defined to include:
- assets before the relationship or marriage and may well include assets after separation
- among other things includes land, motor vehicles, monies at bank, furniture and personal assets, whether jointly or individually owned, or held by either of the parties.
Property also includes the superannuation of the parties which, if necessary, can become subject to a splitting agreement order to divide the superannuation as between the parties.
Our property settlement lawyers can advise you as to what should, or should not, be included as an asset of the relationship, which is sometimes a key issue in dispute.
Four step process of property settlement
The Courts carry out four main steps in assessing division of property:
- Identify the assets, liabilities and financial resources of the parties
- In arriving at a percentage division, assess each party’s contributions to the assets (for example, direct financial contributions, maintaining the assets, gifts or assistance from family members, non-financial contributions, such as physical work done to improve the home, and contributions made to the welfare of the family as a carer or homemaker
- Make any adjustments necessary for the future needs of the parties
- Ensure this process produces a just and equitable result
Trying to work out how the Courts approach these four steps can sometimes be very difficult, which is why you need the advice and negotiation skills of our property settlement lawyers.
Agreement or disagreement?
If your relationship breaks down, you may be able to sort out what to do with the property of the relationship amicably with your former partner, but it is important that you let one of our property lawyers guide you through the process.
On the other hand, you may need assistance to reach agreement. We will help you negotiate a settlement with your former partner, with or without the additional assistance of mediation. At mediation you are assisted by an independent person to reach agreement about the division of property.
The importance of documenting any agreement
If a settlement is reached it really should be formalised. That can be done by Consent Orders made by the Family Court or by a Binding Financial Agreement. This provides finality so that neither party can make a future claim.
It also provides exemption from stamp duty for assets transferred pursuant to the order or agreement. This can be tricky and you should consult one of our property settlement lawyers because each of them has skill and experience in property and commercial matters, not just family law.
Attempting to negotiate and document a”do it yourself” Consent Order or Binding Financial Agreement is virtually impossible without the legal advice of an experience property settlement lawyer.
It can also be very stressful and often complicated, even when everything seems amicable and straightforward.
Why choose us as your property settlement lawyers
Each one of our property settlement lawyers is:
- Experienced in all facets of family law
- Switched on commercially
- Skilled at negotiation and litigation
- Scrupulously fair but at the same time fiercely determined to get the best results for their client.
If you are going through a property settlement and not sure what to do next, we urge you to give us a call on 8276 7955 to discuss your situation. The first 20 minute telephone consultation is absolutely FREE and no obligation.