issues to consider in property settlement
in family law “property” is widely defined. it includes all assets of either or both the parties, such as real estate, shares, cars, jewellery, savings, furniture and effects and usually superannuation.
Property settlements between separated spouses (de facto or married) can be resolved by agreement, which can be formally recorded and avoid the time, stress and costs of proceeding to court.
If there is no agreement to resolve the property settlement either party may make an application to the
Federal Circuit Court (or Family Court of Australia for complicated matters). An application can be made at any time but must be made within 12 months after the date of divorce (or 2 years after separation for de facto parties).
The Court when determining a property settlement approaches the matter in 4 steps. These are briefly outlined below:
It is important to first identify all interests in property that both parties have at the current date. The parties then must either agree on a value or have valuations conducted.
The court in this step assesses contributions that both parties made during the relationship to the total property pool. Contributions can be both direct and indirect and they can also be financial and non financial. Contributions also include contributions to the welfare of the family and contributions as a homemaker.
The court must also have regard to the parties’ current circumstances and future prospects including care of children, employment capacity and age and health.
The court must also ensure that any order it makes is just and equitable in all the circumstances on the parties.
Australian Law Group’s policy, even if a Court application has been made, is to first attempt to resolve the matter by agreement and formalise such agreement by way of consent orders or a Binding Financial Agreement. Consent orders can be the most effective means (both in relation to cost and enforceability) to record such an agreement however if Australian Law Group’s clients wish to retain some flexibility in their agreement and if necessary re-negotiate in the future, a financial agreement can be the preferred means of settlement.
An Agreement will avoid the parties spending many thousands of dollars on lawyers to take the matter to court where no outcome is certain. If the matter cannot settle then Australian Law Group can assist in obtaining the best possible result for you.
Disclaimer : This article provides basic information only and is not a substitute for a professional or legal advice. It is prudent to obtain legal advice from a family lawyer.