When a married couple separates, they enter into a family law property settlement to divide their assets. The Property Settlement Process can be long and complicated, but the settlement is the final legal statement that outlines the terms of a divorce.
The Property Settlement Process
In Australia, assets are divided by negotiation or mediation in 90% of cases. The separated couple sit down and come to a mutual agreement about how best to settle the property pool. If the parties cannot reach an agreement, they proceed to mediation with a professional who will try to help you resolve the situation with your former partner. If this stage is unsuccessful, you will need a family lawyer. Your lawyer can try to negotiate with your former partner or their lawyers. If all of this fails, you will proceed to Family Court where a judge will determine how best to divide the assets.
Once you enter the property settlement process, it could be completed within as little as just two weeks. This is in situations where the parties are willing to come together to hammer out terms. If there are disagreements, however, the process can take months. If it proceeds to court, the process can last up to 3 years.
All of your property is marital property, even if one person brought it into the relationship. But that doesn’t mean it’s a simple 50/50 split upon separation. There are several steps to determining who gets what during the property settlement process.
Property Settlement Process Steps
The first step in the settlement process is to establish the property pool. This requires both parties to produce financial records, from bank accounts and property holdings to shares, trusts, and businesses. You will need to provide the combined value of debts, whether you owe credit card companies, the Government, a bank, or an individual.
The second step is to understand each party’s contributions to the relationship. This isn’t limited to financial contributions, non-financial contributions like housework, childcare, and home renovations are just as valid as wages, gifts, and inheritances. Contributions are essentially anything that contributed to the relationship, family, or home.
The third step is to get an understanding of each party’s future needs. The contributions discussed in step two help determine the share and the court refers to this as an adjustment. An adjustment factors in future needs on several fronts. The court will consider future earning capacity, the standard of health of both parties, the ages of the parties involved, financial resources, employment prospects, and who the primary caregiver is for any children. The court will also consider the length of the marriage and how that may have impacted future earning capacity.
Additionally, one party may have certain living requirements and this will require specific finances to maintain a standard of living. For example, a disabled partner may have ongoing health costs that dictate certain living requirements and also inhibit future earning capacity. In all, there are around fifteen factors the judge will consider.
The final step is for the court to determine whether the settlement is fair and equitable to both parties. Single mothers with dependent children can be left at a disadvantage due to their financial circumstances and potential for future earnings. The same is true for older women who are left alone. These parties often experience a drastic change in their living standards. So, in cases like this, the court may render a judgement for higher adjustment in their favour.
Property Settlement Example
Chris and Rebecca have a total property pool of $1,000,000. This includes debts, property, and bank accounts.
- Their shared home is worth $1.5 million
- 1 Ford worth $25,000
- 1 Toyota worth $25,000
- $50,000 in the bank
The total: $1.6 million
- $750,000 mortgage
- $80,000 debts
The total: $830,000
- Chris’ superannuation $140,000
- Rebecca’s superannuation $90,0000
The total: $230,000
The net property pool is $1,000,000 using the following calculation: Assets less liabilities plus superannuation ($1,600,000 minus $830,000 plus $230,000).
The couple has been married for eight years. Before meeting, Chris owned a million-dollar property with a $600,000 mortgage. They kept their superannuations separate, but they were both working and had similar wages. They have one child, a two-year-old son named Oliver.
Step 1. Identify the property pool = $1,000,000.
Step 2. Identify contributions – their marriage is considered medium-length so they look at all contributions. Based on their circumstances, the contributions were weighted 75% to Chris and 25% to Rebecca. Rebecca received an adjustment of 10% for her contributions.
Step 3. Future needs. There is a child and this generally requires an adjustment of 2-5% per child to the person who will serve as the primary caregiver. In this case, Chris receives the 5% adjustment as he will be the primary caregiver due to Rebecca’s work schedule.
The final tally is 70% for Chris and 30% for Rebecca, which breaks down to $700,000 for him and $300,000 for her.
How AJB Stevens Can Help You With Your Divorce Property Settlement
The best time to start property settlement after separation is as soon as you separate. The Family Law Act of 1975 sets the property settlement time limit as 12 months from the finalised divorce date. De facto couples have two years from the date of separation. It’s a complicated process, and the sooner you get started, the better. At AJB Stevens, we specialise in family law. Whether you want to discuss divorce, property settlement, parenting orders, or spousal support, we can provide you with the legal expertise you need to ensure you are protected. Contact AJB Stevens today to schedule an appointment.