Property Settlement
If you cannot agree, your property dispute will be decided by the Family Court, the Federal Circuit Court or a Local Court, depending on the value of the assets involved, and the complexity of a matter. This equally relates to married and de facto couples.
Consent Orders or Binding Financial Agreement?
In many cases, parties are able to reach a property settlement agreement with the assistance of their lawyers. If they do, they can make an Application for Consent Orders which is a relatively straight forward procedure. The benefit of consent orders is that this agreement is binding and enforceable on both partners. There are also certain tax benefits in having orders made.
Another way to formalize your compromise on the division of assets in a divorce is to enter into a binding financial agreement. There are pros and cons for either option, and it is best to get legal advice as to which option would work best in your particular circumstances.
What If You Can’t Agree?
Then you will need to file an Application for Property Settlement Orders in the appropriate Court (the Family Court, the Federal Circuit Court or a Local Court).
Even after filing an application for property settlement you will have an ongoing opportunity to settle the matter amicably. In fact, 95% property settlement applications filed in a Court are settled without ever getting to trial. With the remaining 5% where a settlement is not achieved the Court will make a decision as to how the property of the couple should be divided after a hearing.
How Does the Family Court Determine the Application?
The court does it by way of a “4-step” process.
Step1.
It identifies your net asset pool. What does this mean? The judge will determine your assets and deduct liabilities coming to the net figure of assets in a divorce.
Net Asset Pool = All Assets – All Liabilities.
Step 2.
The court then looks at how each party contributed to the relationship. Contributions can be of financial and non-financial character. Non-financial contributions include parental or homemaker contributions.
Step 3.
The third step includes identifying the needs of the parties. At this point the court will take into consideration factors such as:
- Age and state of health
- Capacity to gain employment
- Whether or not the parties have care of underage children
- Income, property and financial resources
- Various other factors that affect the future needs of the parties.
Step 4.
The court will then decide on the splitting percentage of the net asset pool and determine what assets each person gets. Finally, it looks at the overall result and determines whether it is just and equitable to the parties in the circumstances.
Can You Have a Binding Pre-Nuptial or Pre-Relationship Agreement?
The Family Law Act provides for binding financial agreements to be made between parties to a marriage or de-facto relationship. These agreements can be made before, during or after the end of the marriage or the relationship. It is possible for parties entering into a marriage or de facto relationship to agree what will happen in the event that they separate.
How can we help you?
We specialize in the area of family law. We provide tailored service suitable in your particular circumstances of division of assets in divorce:
- We advise as to your rights and obligations.
- We assist you in negotiating a resolution of issues in dispute.
- We help you formalise the agreement and make it legally binding and enforceable.
- We represent you in court proceedings.
Where appropriate we will work with accountants, financial and tax advisers to maximise the best possible outcome in your case.
