At the end of a relationship, it is necessary to determine how to divide your assets and financial resources. A property settlement is the term used to describe who gets what after the end of a marriage or de facto relationship.
We handle all aspects of family law property settlements, from straight-forward cases to highly complex matters involving business interests, trusts and a range of multifaceted issues. We have extensive knowledge and experience and will consider the entire circumstances of your family law matter paying particular attention to relationships, finances and taxation.
Why is it important to finalise a property settlement?
Even ex-partners on good terms should ensure that any agreement reached concerning the division of their property is legally documented, and each party receives independent legal advice before finalising their affairs.
All assets are taken into consideration when negotiating a property settlement, whether those assets are held jointly or otherwise. The ‘asset pool’ includes the family home, investment properties, cash, shares and investments, cars, boats, business interests, household contents, and superannuation.
The legal finalisation of a property settlement enables the parties to move on with their respective financial affairs. A formal agreement also facilitates transfer duty concessions when transferring prescribed assets such as real estate. These concessions are generally not available with an informal property settlement.
A legally recognised property settlement will also help protect each party from future claims on assets, income and inheritances.
Consulting a family lawyer can assist in negotiating a property settlement that results in the best net financial outcome for the parties. Your lawyer may work with an accountant to flag potential triggers like capital gains and other tax liabilities and structure the division of your property to ensure it delivers the most viable results.
When can I obtain a property settlement?
You can start negotiations to finalise a property settlement as soon as you separate from a former spouse or de facto partner. There is no requirement to be divorced before settling your financial affairs however the following time limitations are important to note:
- for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation;
- court proceedings for a property settlement must be started within 12 months of a divorce order being granted.
What about de facto couples?
De facto partners can also access certain remedies under family law legislation in the event of a break-up. Generally, a couple is in a de facto relationship if:
- they are not legally married to each other; and
- they are not related by family; and
- having regard to all the circumstances, they have a relationship as a couple living together on a genuine domestic basis.
Several factors are considered in establishing these criteria including the duration of the relationship, the common residence, the existence of a sexual relationship, financial dependence or interdependence, ownership of assets, mutual commitment, care and support of children and the perception of the relationship.
Will I need to go to Court?
Most family law property settlements are finalised without going to court, which is usually only considered as a last resort. The Family Law Act encourages separating couples to settle property issues amicably.
When negotiating how property should be divided after a break-up the same steps that a court would take are generally applied. These are:
- identifying the parties’ assets, liabilities and financial resources;
- assessing the parties’ respective financial and non-financial contributions;
- evaluating the parties’ future needs including their relative earning capacities, state of health, education and responsibilities as primary carer of any children;
- making just and equitable orders in consideration of all circumstances.
We’ve already agreed on how our property should be divided
If you and your ex-partner have already reached an agreement on how your property should be divided then we can discuss your rights, how the proposed agreement will affect you, and the most appropriate way for it to be documented. We strongly recommend entering a Consent Order, although in certain specific cases a Binding Financial Agreement may be preferred by some clients.
When the proposed financial division involves the transfer of joint real estate into the name of one party, a family law agreement will exempt the need to pay stamp duty on the transfer. This usually saves the parties thousands of dollars.
Financial agreements are also referred to as binding financial agreements, pre-nups and cohabitation agreements. They may be made at different stages of a relationship. You can read more about the different types of Financial Agreements here.
A financial agreement can be made after a relationship breaks down to determine how the parties’ assets and financial resources will be divided. To be legally enforceable, certain requirements and formalities must be met. The parties must each receive independent legal advice from a lawyer and sign an acknowledgement stating they are aware of their rights and obligations under the agreement.
Generally, one party’s lawyer will prepare a draft agreement based on the negotiations, which is sent to the other party’s lawyer for discussion with his or her client. After any amendments are made, the agreements are finalised and signed with the appropriate acknowledgements by each party and their respective legal representatives.
Consent Orders are a formal way to settle financial matters and may also include arrangements for parenting matters. The court will need to approve the orders proposed and the application for consent orders must include full financial disclosure by both parties. The parties do not need to attend court.
We can advise on the most suitable way to finalise your property affairs in your circumstances and prepare the necessary documents for you. We will attempt to make the process as simple and cost-effective as possible whilst ensuring your rights are protected and that you receive a fair and reasonable distribution.
While we use every effort to resolve property matters through a negotiated settlement, sometimes court proceedings are inevitable. Should this path be necessary, we have the expertise and strong advocacy skills to assist you throughout the process.
If you need any assistance, please contact Stephen Roberts at [email protected] or call (07) 4052 7514 for a no-obligation discussion and expert advice.