A relationship breakdown requires dividing
your assets, often during stressful times.
Knowing where you stand in relation to asset division is a concern that most people have
when experiencing a relationship breakdown. Every situation is different. Whilst there
is no "one size fits all" answer, we have the expertise to provide quality advice on your
property and spousal maintenance rights and obligations. Getting realistic
advice early on is key to minimising stress and costs.
How are assets divided?
The outcome in each case will be different depending on the particular circumstances of the couple involved. The Family Law Act sets out a number of steps to be taken in determining how the assets of a separated couple should be divided.
In broad terms the steps involve:
- Identifying and valuing all of the assets, financial resources and debts of the parties. Each party is required to disclose their financial circumstances. Where the value of any asset is uncertain, or if the parties do not agree on the value, an expert opinion is sought.
- Assessing the contributions each party has made toward the acquisition of the assets. Contributions are broadly defined and include not only financial contributions, but also contributions as a homemaker and parent.
- A consideration of matters is set out in section 75(2) of the Family Law Act. These include factors such as discrepancies in income, earning potential or expenses associated with caring for children.
- Examining the findings and determining if the overall result is "just and equitable".
What happens if one of us had significant assets before the relationship?
Pre-relationship assets are taken into account when assessing the respective contributions of the parties. If these contributions are significant they may impact the overall division of the assets after separation. How the pre-relationship assets were used and the length of the relationship will also be relevant considerations.
How can an agreement about property division be made binding?
If you and your former partner/spouse are able to reach an agreement about resolving financial issues (whether this is done between you or with the assistance of lawyers), the agreement can be properly documented as a legally enforceable settlement.
This is achieved either by way of a "consent order" or a "binding financial agreement". It is important to obtain independent legal advice about whether the proposed agreement is just and equitable under family law legislation.
What if we can't agree on a property settlement?
Attempts to resolve property issues can be made by way of mediation, solicitor-based negotiation and/or round table conferences. Where negotiation is unsuccessful, either party is able to make an application to the Family Law Courts for orders about property division and/or spousal maintenance.
Such applications must be made within 12 months of a divorce order being made, or in the case of de facto relationships, within two years of the date of separation. After these time limits expire, a party must seek permission from the Court before they can proceed with their application.
It is important to note that even when court proceedings are commenced, the vast majority of cases settle prior to being determined by the Court.
Should I try mediation?
For some separated couples mediation can be very useful. We recommend that you obtain independent legal advice prior to and after mediation. We can also provide you with a list of meditation centres in your area.
Can I do a 'Pre-nup'?
A binding financial agreement (BFA) can be made prior to and even during a marriage or de facto relationship. The BFA can stipulate how assets will be dealt with in the event that separation occurs. Prior to entering into a BFA, each party must receive independent legal advice.
Speak with a lawyer.
Division of property can often be a tense exercise, even when your relationship breakdown is amicable. Contact one of our Accredited Specialists below for further advice.
Tim Robinson.
Founder / Consultant.
Some additional resources that might be helpful
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