The breakdown of a marriage or de facto relationship raises questions about how to divide your property and finances so you can each move on with your financial lives. The good news is that finalising a family law property settlement does not necessarily mean you will need to go to Court. In fact, many family law property settlements can be finalised with the assistance of a family lawyer and without protracted and costly court proceedings. Our property settlement lawyers in Canberra can help whether you and your former partner have already agreed on how to divide your property and want your agreement formalised, or if you need somebody to represent your legal interests in negotiating a fair property settlement.
A property settlement involves the division of assets, liabilities, and financial resources between a couple whose relationship has broken down. The couple’s ‘property pool’ is determined, which considers all assets owned individually and jointly, financial resources, and liabilities.
The law follows a formula for dividing property fairly, however, ‘fair’, does not necessarily mean ‘equal’. A property settlement will consider what each person brought into the relationship, what they contributed during the relationship (both financially and non-financially), what they each contributed to the property pool after separation (if any) and their respective future needs.
Full and frank financial disclosure is important to determine a fair division of property and the parties are encouraged to make genuine attempts to resolve any issues and come to an agreement.
Formalising your Property Settlement
No matter how an agreement is reached, it is important that your arrangements are legally binding. Informal agreements are not legally recognised as bringing a couples’ financial affairs to an end and may leave you open to future claims. For example, a statutory declaration is a legal document, but it is not legally binding for the purposes of finalising our property pool. If you and your former partner agree on how to divide your property, there are two ways to formalise these arrangements – consent orders or a financial agreement. We can discuss each method with you and guide you in the most appropriate for your circumstances.
Consent orders record your agreement in writing and an application with the proposed orders is filed with the Court for approval. The parties or their legal representatives do not need to attend Court for this process. If the orders are considered just and equitable (or ‘fair’), they will be granted by the court without any court appearance. When the consent orders are made, they have the same effect as a court order made by a judicial officer at the conclusion of a court hearing. Because consent orders must be approved by a Court, they are often considered a more formal way to finalise your property affairs than through a financial agreement.
A financial agreement under the Family Law Act 1975 allows the parties to a marriage or de facto relationship to enter into an agreement dealing with their financial arrangements without the need for Court approval. The parties can enter into a financial agreement before, after or during a marriage or de facto relationship. There are strict requirements involved in creating a financial agreement and each party must obtain independent legal advice.
Going to Court
There are various options you can consider when trying to resolve your property dispute before taking a matter to Court. Despite best efforts, however, sometimes Court proceedings are necessary to ensure your rights are protected. There are time limitations for parties to bring an application for property or financial orders before the Court, so we recommend getting legal advice sooner rather than later.
The Court usually applies a four-stage approach when dealing with property matters. In summary, these include:
- Identifying what is in the property pool including all assets, debts, and superannuation entitlements.
- Identifying the contributions made by each party towards the relationship or marriage including financial, non-financial and contributions as a homemaker and parent.
- Looking at each party’s current and future circumstances – the Court looks at the parties’ respective ages, health, capacity to earn an income, and available resources, as well as their responsibilities for the care of any children.
- Making orders that are ‘just and equitable’ after taking all the circumstances into account.
Speak to a Property Settlement Lawyer in Canberra
Our property settlement lawyers in Canberra will always look for the most efficient and cost-effective way to settle your family law property matter, while ensuring your rights are protected. We will advise you of your entitlements and negotiate on your behalf to achieve the best possible results for you and your family. If your matter does proceed to Court, we will provide strong representation, advocate for your rights, and help you navigate the entire process.