Before you begin to discuss financial issues arising out of a separation with your spouse or partner, it is vitally important that you seek legal advice from an experience Family Lawyer. Family Law is very complex with each case having different situations and circumstances. We at Altius Partners Lawyers will guide you through the complex process step by step and suggest the best possible solution for your unique case. We have the knowledge and experience to handle all resolve all aspects of problems related to Family Law Property Settlements in a peaceful manner.
Once a relationship has come to an end, it is essential to determine how to divide up your assets and financial resources. The term Property Settlement is used to describe who gets what after the end of a marriage. The Family Law Act 1975 covers all matters relating to property settlements for married couples and de-facto couples (including same-sex relationships). “Property” covers such things as your home, other real estate, money in the bank or other financial institution, cars, boats, investments, business interests, household contents, and Superannuation.
How do you determine what the Property Settlement should be?
Contrary to urban myths, there is no presumption that the property should be divided 50/50, 60/40 or in any other random proportion. The Family Law Act sets out the factors which must be taken into account when a Judge has to consider how property is to be divided.
The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or a de facto relationship. There is no universal formula to apply as a property settlement is based on discretionary criteria. The factors which the Family Law Act specifies must be taken into account are as follows:
- Assessing the current value of the property concerned and the extent of any liabilities
- Assessing the direct financial contributions by each party, for example, assets and savings owned at the commencement of the relationship.
- Considering the indirect financial contributions by each party, for example, gifts and inheritances from families.
- Considering the non-financial contributions to the marriage or de facto relationship, for example, caring for children, being the homemaker and maintaining or improving the property.
- Taking into account future needs, for example age, health, financial resources, care of children and income earning capacity.
- Finally, after considering all of the above, the final consideration is to apply the test of whether any proposed property settlement is fair and equitable in the circumstances.
It is important to realise that the way your assets and debts will be shared will depend on the individual circumstances of your family.
Mediation and Negotiation
The Family Law Rules require you to take certain steps before you commence legal proceedings in the Family Court (These steps are called Pre Action Procedures). The Pre Action Procedures are intended to encourage parties to resolve matters through negotiation rather than having a Judge make a decision in Court. Unless your case is urgent, or involves some exceptional factor, such as allegations of abuse or fraud, you must:
- Make a genuine effort to resolve the dispute through counselling or mediation;
- Providing the other party with copies of relevant documents;
- Make a settlement offer;
- advise the other party of the orders you will seek from the Court.
What is a Financial Agreement?
Married or de facto couples (including same-sex couples) have a right to make Financial Agreements about financial matters that are legally binding. Such an agreement can be made before, during or at the end of a relationship.
A Financial Agreement is a written document which sets out what you and your partner have agreed to do with respect to financial matters in the event of a breakdown of the relationship. A Financial Agreement does not have to be approved by a court- in fact, it is used in order to ensure that a Court cannot interfere with private arrangements made between two consenting individuals.
The Family Law Act states that a Financial Agreement is binding on the parties to the agreement:
if, and only if:
(a) the agreement is signed by all parties; and
(b) before signing the agreement, each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement
(c) either before or after signing the agreement, each party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and
(d) a copy of the statement referred to in paragraph (c) that was provided to a party is given to the other party or to a legal practitioner for the other party; and
(e) the agreement has not been terminated and has not been set aside by a court.
The Court can declare a Financial Agreement invalid if these conditions are not met, or if fraud or non-disclosure is involved. It is essential that you have an expert family lawyer advising you on Financial Agreements. The cost involved is insignificant compared to the future cost and stress of potential Court Litigation.
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