Division of Property

Dividing the property and assets of a relationship which has broken down can be a difficult process. We attempt to make this process as easy as possible for you by guiding you through the requirements for a property settlement and looking to the factors the Court takes into consideration from the first interview, to give you an indication as to a possible outcome.

Steps in determining a Property Settlement:

1. Identify and value the assets of the relationship

All the property that is owned or disposed of by you and your former spouse/partner before, during and after separation will be taken into account in determining the property pool. Often people forget to include the superannuation interests of both parties, which is another relevant factor in a property settlement. Valuations need to be attributed to each of the assets in the property pool. If you are unable to agree to a value of the assets, a valuation must be obtained.

2. Assess the contributions made by each party to the relationship

The court will consider the contributions made by each party over the duration of the marriage/relationship. Factors the court will take into account include:

  1. The assets held by each person at the commencement of the relationship;
  2. Any lump sum, gifts, inheritances or windfalls obtained during the marriage or since separation;
  3. The financial contributions made by each party;
  4. The non-financial contributions made by the parties to the acquisition, conservation and improvement of the assets;
  5. The contributions of the parties to the welfare of the family, such as the role of parent and/or homemaker.

3. Assess whether any adjustment to the property interest should be made

There are factors under the Family Law Act that the Court will take into consideration: financial and non-financial contributions; contributions to the welfare of the family; the effect of the Order on earning capacity; any child support payments being made; and the age and state of health of the parties and their respective capacities.

4. Consider whether the Orders/Agreement is just and equitable

Finally, the Court will not make an Order in relation to a property settlement unless satisfied that it is 'just and equitable' to do so. This involves taking into account factors such as the future needs; age; state of health and earning capacity of the parties.

Property Settlement by Consent

If an agreement on the property settlement is reached between you and your former partner/spouse property Orders can be made by consent. There are two methods by which we can help you do this:

1. Consent Orders filed with the Court

We can draft Consent Orders detailing the assets of the marriage/relationship and the interests that each party will retain under the agreement. This is generally done by way of negotiation with your former spouse/partner or their solicitor. Once an agreement is reached, we can draft the appropriate documents to be signed by both parties, which are then filed with the Court.
Once the Orders are granted by the Court, they are binding on both parties, and each party must comply with any obligation to transfer property, make a payment to the other party or whatever the case may be under the agreement.

2. Execute a Binding Financial Agreement (Post Relationship)

You may wish to execute a Binding Financial Agreement to finalise your property settlement, which we can prepare for you (please see the Binding Financial Agreements section below).

We will advise you on the most appropriate method for executing your property settlement whether it is through Consent Orders or a Binding Financial Agreement.

Court Applications

We understand that sometimes it is not possible to make an agreement to a property settlement following the breakdown of a relationship. When all other avenues are exhausted we ensure that our clients are properly prepared for Court proceedings.

In this instance we will prepare detailed applications for property Orders in either the Federal Magistrates' Court or the Family Court of Australia depending on which is most appropriate for your case.

The Court process begins by one of the parties filing an Initiating Application which sets out the Orders the party seeks in relation to property. With this Application you also file a financial statement and an Affidavit which details the relationship, the financial and non-financial contributions made and future needs of the parties. We will prepare all these necessary documents on your behalf. If the matter proceeds to a hearing we will ensure that you are well represented in Court.



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