Here at Berryman Partners, we understand that the breal down of a marriage is an extremely difficult and emotional time for the parties involved.
That is why we are committed to assisting you in a supportive, friendly and personal environment. We have an experienced team of solicitors here who practice in Family Law with years of experience in this area of law. We will take the stress out of a daunting process and strive to achieve the best possible outcome for you.
Property settlements are governed by the Family Law Act 1975 (Cth). A property settlement is the process that finalises a financial relationship between parties who have separated. This includes married couples, parties who have been in a de facto relationship and same sex relationships. This process involves dividing the assets that you and your former partner had.
In order to consider how property should be divided, the Court will take a four (4) step approach:
- Determine the property pool that is available to the parties. This includes your assets, your liabilities and any financial resources such as any inheritances that a party may be due to receive. In some cases, where parties are unable to agree about the value of any property, expert evidence can be obtained to value any items in dispute.
- Assess the contributions made by the parties. This step involves determining what direct and indirect financial and non-financial contributions were made by the parties throughout the relationship. Financial contributions include income that has been received by way of employment or inheritances or gifts that have been received throughout the relationship. Non-financial contributions include any unpaid renovation work that was undertaken to any property, who attended to the daily household duties such as cooking and cleaning and contributions by a party providing the full-time care and supervision of children.
- Determine the future financial needs of each party. This can include where one party will be responsible for care of the children of the relationship, if there is a disparity in income and income earning ability moving forward or when one party has substantial health issues. If any of these apply to you, you may be entitled to an adjustment of property in your favour.
- Determine whether proposed order is just and equitable. This step involves determining whether the property settlement orders sought are fair taking into account the above factors.
If you and your former partner can reach an agreement about how you would like your property to be divided, a property settlement can be finalised by way of Binding Financial Agreement or Consent Orders. We can discuss which option is more appropriate for you once we have an idea of your individual circumstances.
In the event that you and your former partner cannot reach an agreement as to the division of your property, mediation is a suitable option for parties to sit down with a qualified mediator and their legal representatives and try to reach a resolution to the matter. This is much more cost-effective than filing an Application with the Court.
If you cannot reach an agreement by way of mediation or negotiation, you will need to file an Application with the Court. We can discuss these options with you at any time and will guide you throughout every step of the process.
If you do intend to make an application to the Court, you need to consider if you are already divorced. If you are, you only have twelve (12) months from the date of the divorce becoming final to make any application with the Court.
Give our office a call today on (02) 4943 3988 and ask to speak with a family law solicitor.
Property Settlements FAQ’s
If you have recently separated from your partner, it is important that you obtain appropriate legal advice as to what your entitlements are in a property settlement. It is important to know that there is a four-step process that the Court adopts when considering what each party may be entitled to in a property settlement. The four-step process is:
1. Determining what the asset pool is that is available for distribution between the parties.
2. Having regard to the contributions, financial, non-financial and in capacity as homemaker and parent.
3. Determining what the future needs are of the parties. This is also known as Section 75(2) factors.
4. Considering whether it is just and equitable for the Court to make the Order.
The Family Law Act 1975 is the relevant Act for property settlements.
Contact our experienced team for a confidential discussion with further information regarding the 4 step process in a property settlement.
No – they are not. A property settlement is the formal legal process in which parties to a marriage or a de facto relationship divide their assets following the breakdown of their relationship. This process can be completed immediately following your separation and you are not required to be divorced before commencing a property settlement process.
A Divorce is the formal legal process in which your marriage is terminated and you are no longer married to your former partner and are free to re-marry.
Our expert team is available to assist with both of these matters.
The short answer is yes. If you are married or have been in a de facto relationship for at least 2 years, a person is entitled to make a claim for a property settlement. However, what that property settlement outcome would look like would vary based on several factors including the length of the relationship, whether there are children of the relationship, the contributions of the parties during the relationship and the 4 step process above would need to be applied.
If there are questions about time frames or the length of relationships, we suggest you make an appointment with our expert team as soon as possible.
It is important that you start the process for a property settlement as soon as possible. Parties to a marriage have 12 months from the date of their Divorce to apply to the Court for a property settlement and parties who were in a de facto relationship have 2 years to apply to the Court for a property settlement. Otherwise, you have to obtain a special permission called leave, from Court to start your case. This is only granted in exceptional circumstances.
Parties who are involved in a property settlement process have a duty to provide full and frank disclosure to the other party of their financial situation. We can help you obtain this information. It is also worthwhile to see what records you have stored at home. The types of documents that parties in a family law matter are expected to share with one another include, but are not limited to, taxation returns and notice of assessments, payslips, bank account statements, market appraisals or valuations undertaken on any properties and business activity statements.
If you are not sure what information you can and can’t request, we suggest you arrange an appointment with our expert family law team to discuss.
Yes, superannuation can form part of your asset pool during property settlement negotiations. If you can reach an agreement with your former partner that you will each retain your own superannuation, that is also an option that can be considered. However, it will be included in the calculations of the division of the asset pool.
Our team is available to assist in relation to superannuation queries – give us a call for a confidential discussion.
No. If you and your ex are able to reach an agreement amicably, this is cost-effective to both parties. An agreement can be document by Consent Orders, which are lodged and filed with the Court. However, generally no attendance at Court is required. The agreement can also be documented by way of Financial Agreement.
To discuss the pros and cons of each document, telephone our office to discuss today.