Property settlement in Family Law is the formal division of assets, superannuation, financial resources and liabilities following the separation of a couple who were married or who were in an eligible de facto relationship. This includes same-sex couples.
Many couples own property together and share debts. Sometimes, one party has the house or a business registered in their name only or under a family trust, and the other party is concerned about their legal entitlements in these interests.
Often, one party has assets or liabilities they acquired prior to the relationship or after the parties separated. In other situations, a party may have received an inheritance and contributed that towards the acquisition of the matrimonial or relationship pool of assets.
At times, there are taxation consequences that need to be considered as part of the property division, such as stamp duty and capital gains tax.
Our lives and finances are becoming more and more complicated. When you separate from a spouse, these issues become even more confusing, particularly if you’re not aware of what there is precisely to be divided between you.
At Elias Hanna Family Lawyers, we take you through the assessment process that the Family Law Courts adopt in determining each party’s entitlements in a property settlement. We explain how the Court deals with the various contributions made during a relationship; whether they be financial, non-financial or by way of the care of children. We take you through the other issues the Court looks at such as future needs, ongoing care of children, earning capacity, age, and health factors.
We explain the Family Law Rules which obligate each party to provide complete disclosure of their financial information and documents so as to place both of you in an informed position to negotiate a final settlement.
Our initial and preferred approach is to resolve property and financial matters by agreement wherever possible. This has the dual effect of minimising your emotional stress and financial costs.
With the benefit of our advice, you will be in an informed position to negotiate a resolution of your property division with your former partner. If you are able to reach an agreement, we can then formalise the settlement on your behalf without the need for you to ever set foot in a courtroom. This can be done by way of either a Binding Financial Agreement or Consent Orders to be made by the Family Court of Australia. If you’re unable to reach agreement with your former partner, we will advise you about each step of the process involved in bringing a Court application, including the associated costs.
You do not need to wait until you are divorced to settle your property and financial division with your spouse. But the clock starts ticking when you separate, either by one of you moving out of the home you shared, or occupying different bedrooms under the same roof. These dates are vital, and you should be keeping a diary record of them and all other issues going on in your life when your relationship gets to that point.
If you’re a married couple and one or both of you have applied to the Court for a Divorce Order , you each have 12 months from the date that the Divorce Order becomes final (one month and one day after it is made at a hearing before the Court) within which to commence Court proceedings seeking property settlement and/or spousal maintenance Orders.
If you’re a de facto couple, you have 24 months from the date that you separated within which to start Court proceedings. After that, you’re out of time, and you will need to seek the leave of the Court to proceed with a property and/or spousal maintenance application. Depending on how long you’ve left it and your particular circumstances, the Court may not give you leave to go forward with your application.
It is wise to get advice about your situation as early as possible to see what your rights are and where you stand in terms of the settlement of your property and financial matters, and the arrangements to be made for the care of your children. You can then move forward on an informed basis, and structure your life in such a way that you know what you need to do and where you are heading.