FAMILY LAW & PROPERTY SETTLEMENT
PROPERTY SETTLEMENT FOLLOWING SEPARATION OR DIVORCE
When determining a property settlement, a court will take a four-step approach –
Step One – What do you have?
The Court must first determine what assets, liabilities and financial resources are to be considered in determining the property division.
In essence a list of everything that you and your partner own is created. It does not matter if your home is registered in your name, your partner’s name or even a friend’s name.
If you own it (or part of it)- it will go on the list. This is also the case for debts and other liabilities. The Court will also take the value of each of the assets as at the date you reach agreement or the date that you appear for a trial – not the date that you separated.
This is very important to remember as the value of things you own could change over time.
Step Two – How did you get it?
Secondly, the Court looks at the different ‘contributions’ you each made during your relationship.
There are many different types of contributions such as-
- Financial contributions such as income or assets that you or your partner brought into the relationship
- Non-financial contributions such as unpaid work in a family business or an owner builder undertaking renovations to real estate
- Contributions to the welfare of the family such as the day to day running of the household and care of children.
Each relationship is made up of very different contributions and it is for this reason that the Court will look at each relationship on its own facts. There is no hard and fast rule.
Step Three – Other factors to consider
he third step involves the Court taking into consideration a number of matters such as-
- Your age and state of health
- Your children, their age, their needs and who will be caring for them
- Your income, your partner’s income and how this may be affected after the property settlement
- The effect (if any) that the relationship has had on your or your partner’s ability to earn an income and obtain employment
- Any other matters the Court considers relevant in your relationship.
Step Four – Is the overall division appropriate?
Finally, after weighing up contributions and all the other factors that are relevant to your case the Court will come to a decision (normally in percentage terms) about how your property should be divided between you.
There is no precise science to reaching a decision as every relationship is different, however the Court must be satisfied that the division is ultimately ‘just and equitable’.
There is considerable difficulty in predicting with certainty the likely outcome of an application for property settlement without first having a lot of specific information.
We encourage you to meet with a member of our team to discuss what outcomes might be appropriate for your family.
If an agreement regarding property settlement can be reached between the parties, it is recommended it be formed in a legally binding manner. This will ensure there are no further claims between the parties (save for exceptional circumstances).
There are two ways to make a legally binding property settlement.
Consent Order – This involves lodging certain documents with the Court for approval of the terms of the agreement.
Binding Financial Agreement- This involves a lawyer for each of the parties signing a certificate stating that their client has received independent legal advice about the agreement.