There are a lot of complicated emotions to deal with at the end of a marriage or de facto relationship. Those emotions, however, cannot delay the property settlement process. The sooner you reach out to a lawyer the quicker the property settlement after separation can be dealt with. The sooner you do this, the sooner you can process your grief surrounding the end of a relationship.
What Is Divorce Property Settlement?
When a couple separates, a family law property settlement involves the division of their financial resources. This includes assets and liabilities, as well as factoring in debt. In many situations, a couple can do this without the assistance of the court. However, some couples may struggle to reach an agreement, at which point the court will become involved.
What does the property pool include? Any property, whether owned independently or jointly. Superannuations, trust and business interests, cars, inherited assets, jewellery, animals, and money. The settlement isn’t limited to property or assets attained during the relationship. Items acquired before and after separation can be included, which is why it’s so important to begin the property settlement process as soon after separation as possible.
Likewise, liabilities also form part of a divorce property settlement. Liabilities include taxes, loans, debts, and stamp duty obligations. These may be held individually or jointly.
Is There A Property Settlement Time Limit?
Yes. If you are married, you have one from the date of divorce to commence your property settlement process. De-facto couples have two years from the date of their separation to begin the process. You can begin the property settlement process at any point after your separation. However, it is best to do so as soon as possible. You should always seek independent legal advice as soon as your marriage or de-facto relationship comes to an end. It is the best way to ensure your rights are protected. It will also ensure you understand your obligations to the settlement process.
It is necessary to seek a property settlement as it finalises financial ties with the other party. If you do not take this step, the other party can come back and make a claim later. While there is a time limit, it is possible to request a property settlement after this limit. And, when that happens, the court will include all assets and property accumulated since the separation. You stand to lose a lot if you do not take this necessary step early.
Does the Court Need To Be Involved?
No. While you do not necessarily need to involve the court in the property settlement process, you should seek the advice and assistance of a legal professional. It will save you time and money to leave the court out of the equation. Agreeing without the court can also help maintain a healthy relationship with the other party moving forward, which is particularly important if you have children together. If both parties agree, an application can be made to the court to make a financial agreement or to obtain a consent order.
Consent Order
If both parties have agreed on a property settlement, a consent order forms the written agreement and is finalised by the court. Once the agreement is signed, you are signalling your agreement with the terms within the document. It is essentially a contract, and the consent order makes it legal. You can do this without attending court.
Financial Agreement
A financial agreement is also similar to a contract. Your financial agreement qualifies how the property pool is divided between parties. Under the Family Act 1975, couples are permitted to reach financial agreements before, during, or following the end of a relationship. These are usually classed as prenuptial agreements. Before you sign an agreement, you should seek independent legal advice to ensure you fully understand the terms of the agreement. The court can invalidate the agreement and set it aside if the formal requirements are not met.
Court Involved Property Settlements
If the involved parties cannot agree, they can make an application to the court to decide on their behalf. The court will render a decision that is reasonable and fair to both parties. There is typically a five-step process the court undertakes to determine how to best split the property between parties.
First, the court will identify the legal and equitable interests of both parties.
Second, the court will determine whether it is just and equitable to render a settlement on those established interests.
Third, the court will determine the indirect and direct contributions. This includes non-financial or financial, made by each party. Financial contributions include salary, while non-financial contributions include homemaking and childcare. This is worked out as a percentage based entitlement.
Fourth, the court will consider whether further amendments are required based on future needs, such as health, earning ability, child care, etc.
Fifth, the court will consider whether the result is equitable and just in all circumstances.
How Much Will I Get?
There is no easy way to answer the question of how a property settlement will pan out. There isn’t a presumption of equal division between both parties. Nor is there a set formula the court will use to determine the outcome. If it does go to court, your case will depend on your circumstances. There are steps you can take to prevent the other party from hiding assets or selling property. Ideally, both parties can agree with the help of their lawyers and avoid the court process altogether. We understand that isn’t always possible, which is why we provide court representation to ensure you get what you are due.
How AJB Stevens Can Help
AJB Stevens can provide you with advice, court representation, and the best possible legal representation possible. If you are in the middle of a separation or thinking about divorce, contact us today to discuss your property settlement process. We can assist with the valuation of assets, property calculations and adjustments, superannuation, assessment of contributions, and much more. Call us direct or use our online contact form to receive a response within 24 hours.
