Facts About Property Settlement
Pre-Action Procedures
It is a requirement that prior to filing an application with the court, both parties attempt to reach an agreement in relation to property settlement through ‘pre-action procedures’.
The exceptions to this requirement for pre-action procedures are if the court accepts that:
– The case is urgent
– The case involves family violence
– The case involves fraud
– One partner is refusing to negotiate
– Should an agreement not be reached, an application for property orders should be filed with the Family or Federal Court within 12 months of a divorce order being made.
Formalising A Property Agreement Out Of Court
In accordance with the Family Law Act, one way to formalise a property agreement out of court is through financial orders. This is a binding contract, which must be signed by both parties. It covers:
– Division of property, finances and debts
– Superannuation
– Spousal maintenance
– Any other related items
– Both parties should receive independent legal and financial advice before signing a financial agreement.
Secondly, it is possible to finalise a property agreement with legally binding consent orders that are formalised and approved by the court. These consent orders deal with :
– Transferring or selling property
– Splitting superannuation
– Spousal maintenance
– Rather than going to court, consent orders may be filed at the Family Law Registry. Consent is granted by the court if it is satisfied that the terms are properly drafted, just and equitable.
Settling Property Disputes In Court
Property orders may be submitted to the Family Court or Federal Circuit Court within 12 months of a divorce becoming final if no agreement relating to property can be reached.
What follows is a court hearing where both parties must share their financial circumstances. The court will consider a range of factors including contributions, net assets and future needs before putting forth a settlement that takes both parties into account.
Property Settlement – A Four Step Process
Dividing a property after a separation can be a complicated procedure, but it can be broken down into four steps:
– Statement of assets and liabilities. This includes both party’s financial assets, properties, superannuation and other assets such as shares, jewellery, vehicles and furniture.
– Assessment of contributions. This includes financial and non-financial contributions and takes into account negative contributions that may have resulted in financial loss.
– Adjustments based on future needs and contributions. This includes the care of children and the earning capacities of both parties.
– Reaching a fair and reasonable outcome.
Get What You Are Entitled To
In a best case scenario of a divorce or separation, couples are able to assess and divide their assets amicably and will be able to formalise a property agreement out of court. They will need little intervention before coming to an ongoing financial arrangement that both are happy with.
In many cases, legal mediation is required to examine assets and negotiate an agreement between parties. For some couples, a judge may be required to hand down a final decision on the settlement of property and separation of assets.
In every case, both individuals should enlist the help of an experienced, professional lawyer to ensure that they will not miss out on what is legally theirs.
Professional Mediation, Individual Support
At Barwick Boitano, we understand that undergoing a legal separation is a trying and difficult time.
We’ll support you every step of the way, getting to know you as an individual and learning as much as possible about your unique circumstances.
Reduce the stress of a complicated property settlement process with the help of an experienced professional at Barwick Boitano.
