When parties separate they need to divide the property that they have accumulated
during the marriage. Property includes amongst other things:
When deciding on a fair property split a good family lawyer mimics what a Family
Court would do. This involves a four step process:
Firstly, what are the assets, liabilities and financial resources?
Here a full and frank disclosure is made. A list of all the assets and any liabilities
and financial resources whether in one party’s name or in joint names is compiled.
This makes up what is known as the matrimonial pool. These items can be given values
that the parties agree to or if they can’t agree then sworn valuations will have
to be obtained.
Secondly, how did the parties acquire these assets and liabilities?
Here the Court looks at the various types of contributions. They look at how the
matrimonial pool of assets and liabilities was acquired. The Court looks at financial
contributions (who earned money), initial contributions (what each party brought
into the relationship), non-financial contributions (such as renovating the house),
parent and homemaker contributions (cooking, cleaning, shopping and parenting) and
third party contributions (where parties have received compensation payouts, gifts
from family etc)
Thirdly, what’s the future like for the parties?
Here the Court considers what further adjustment should be made taking into account
factors such as the parties’ health, earning capacity, employability, whether they
are looking after children etc.
Fourthly, what will be a just and equitable split of the assets?
Before the Court can make a division of assets they have to be satisfied that the
division is fair in the circumstances of the relationship.
Parties should always try to resolve their matter by agreement. If they can they
must formalize it by either entering into Consent Orders or a Binding Financial
Agreement in order for the agreement to be binding.
An application for a property settlement can be made immediately following separation;
you need not wait for a divorce to be granted. But once a divorce is made final
you only have one year to bring an application for a property settlement. If you
are out of time and need to bring it late you will have to convince a Court to allow
you to do this.
Our aim is to negotiate property settlements without the need to go to Court. This
will be a considerable saving in both time and cost not to mention the lower stress
levels for all involved. Don’t forget the only type of property settlement that
is binding and enforceable is one that is formalized by either Consent Orders or
Binding Financial Agreement.
Consent Orders and Binding Financial Agreements both result in stamp duties being
waived on the transfer of property and cars to the other partner. The main difference
between a Financial Agreement and Consent Orders is that the Financial Agreement
does not need to be lodged with the Court for approval, and is not subject to review
by the Court as to whether the agreement is just and equitable while consent orders
do.
If parties are unable to reach agreement one or the other of them will issue an
application to court. The other party will need to file a response. The parties
will then attend a conciliation Conference, which is an occasion when the Registrar
and the lawyers assist the parties to make a real effort to settle the matter. Matters
often settle at this time or shortly after.
If the conference does not result in a settlement the Registrar will give directions
for what else needs to be done to progress the matter to take it to trial. Most
matters will settle before they reach the trial. We’ll help you try to achieve that.
Where to now?
Speak to a family lawyer
Often the best way to get the answers you need is to speak to an expert.
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or please call us on 1300 355 641.
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Organise an initial consultation
A face-to-face consultation gives you the opportunity to discuss your family law
issue with professionals who deal with and resolve these issues on a daily basis.
It gives you a chance to ask any questions you may have and us to gain background
and provide an insight into the options available to you.
For more information please call us on 1300 355 641 or send as an e-mail at
familylaw@hflawyers.com.au. We are here to help.