Property & Financial Matters
During your marriage or de facto relationship, it is likely that you acquired assets and financial resources with your partner, whilst also managing liabilities and debt.
Upon separation, it becomes necessary to navigate a division of the collective assets and liabilities you have acquired with your former partner, so that you may both move on, financially independent of one another.
Every family law property settlement is unique, and as diverse as the parties to each relationship. Our Family Lawyers provide specialised advice, assistance and advocacy, specific to your needs, with regards to a fair and formal division of your property interests, as governed by the Family Law Act 1975.
Married, de facto, and same sex relationship property and financial matters
When separation occurs, the uncertainty of your financial position can be a considerable source of stress and anxiety. Concerns such as the preservation and protection of hard-earned assets, access to financial resources, the cost of living independently, and the potential withdrawal of financial support can be overwhelming.
Property and finances after separation – division of assets and liabilities
When people separate, they usually need to sort out how to divide their assets (property) and debts. There are various ways this can be done, for example:
- you and your former spouse or de facto partner can agree on how your property should be divided without any court involvement
- if you agree on arrangements, you can seek to formalise your agreement by applying for consent orders in the Family Court, or
- if you cannot reach an agreement, you can apply to a court for financial orders, including orders relating to the division of property and payment of spouse or de facto partner maintenance.
Steps to Property Settlement
The first stage in preparing for property settlement is to identify all assets and liabilities of yourself and your former partner and determine the values to be attributed to those items. In circumstances where the parties cannot agree on the value of an item, professional valuations may become necessary.
The Court cannot make orders for the alteration of property interests unless it is satisfied that, in all the circumstances, it is just and equitable to make the order.
In order to determine the property entitlements of each party in a property settlement pursuant to the Family Law Act, the following steps are routinely adopted:
- Identify and value the property, liabilities and financial resources (including all superannuation interests) of yourself and your former partner. For this step, it is necessary to consider the whole of your collective property, however and whenever required. Importantly, each party must comply with their obligation to the Court to make full and frank disclosure of their financial circumstances.
- Assess the contributions made by each party during the marriage or de factor relationship, including:
- direct financial contributions to the acquisition, conservation or improvement of any of the property, such as wage and salary earnings
- indirect financial contributions to the acquisition, conservation or improvement of any of the property, such as gifts and inheritance from families
- direct and indirect non-financial contributions to the acquisition, conservation or improvement of any of the property
- contributions to the welfare of the family, including any contribution made in the capacity as parent and homemaker
- Assess the future needs of each party. The Act sets out many factors that may be considered when assessing the future needs of each party, including, but not limited to, the age and state of health of each party, any disparity of income or earning capacity, the financial resources of the parties and whether the party has the care of a child.
- Consider all of the above holistically, to determine whether, in all of the circumstances, the settlement proposal of the parties, or either of them, is “just and equitable”, as is required by the Court. As a matter of prudence, we also consider this at the first step.
Applying for / responding to court proceedings concerning family law property disputes
We work hard to resolve our client’s family law property matters by consent. Unfortunately, however, this is not always possible. If it becomes apparent that a matter is incapable of an amicable resolution, and a judicial determination may ultimately be required, we will provide you with considered advice and guidance as to the process of litigation, and whether this option is an appropriate next step for you.
Our family lawyers are confident and experienced advocates in all stages of Court proceedings. We understand that litigation is generally a source of tremendous stress for all parties involved. As the legal representative for our clients, we maintain a calm, respectful and professional approach throughout Court proceedings, at all times striving for the earliest resolution of your matter, whilst achieving optimal outcomes.
It is important to note that there are time limits for applications to the Court (by consent or otherwise) seeking Orders to property adjustment.
If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.
If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.
If you do not apply within these time limits, you will need special permission of a court. This is not always granted.
We would be pleased to provide you with legal advice, tailored to your individual circumstances and needs, with respect to the financial considerations of separation. Contact us today for more information about how we can help you.