Divorce & Separation Property Settlements

Are you Separated – thinking of Separating?

Separating couples often ask:

What am I entitled to?
How do I go about getting an agreement?
How do I finalise the agreement so he/she can’t come back for more?

Resolve your Separation Settlement Fast without going to Court

CALL US ON 07 3804 3244 NOW 

We are committed to saving our clients’ time, money and heartache by offering a choice of methods to resolve family disputes (negotiation, mediation and collaborative law).  We will explain the costs and merits of each approach and work with you to find a solution that suits both your specific needs and your budget.

The following information is general in nature and should not be relied upon as being advice regarding your particular circumstances.

RESOLVING PROPERTY SETTLEMENT AND SPOUSAL MAINTENANCE ISSUES

PROPERTY SETTLEMENT (AND OTHER FAMILY LAW MATTERS) MAY BE RESOLVED BY EITHER:-

• negotiated settlement; or
• decision of the Court.

In the case of Defacto Relationships – Any applications to Court for property or spouse maintenance must be commenced by filing an Application within 2 years of the date of separation.

In the case of married couples – Any applications to Court for property or spouse maintenance must be commenced by filing an Application within 12 months of the date of divorce.

You and your former partner may be able to negotiate and resolve the issues in dispute in relation to the distribution between you of relationship property and in that case the matter can be finalised by consent orders made in either the Family Court of Australia or the Federal Circuit Court of Australia or by way of a financial agreement.  We will discuss with you which method is appropriate to your circumstances once you have advised us that a settlement has been reached.

We recommend dispute resolution methods including negotiation, mediation and collaborative methods be undertaken to attempt to resolve the issues in dispute.  Mediation is a process in which an independent person (the mediator) assists the parties to negotiate and make mutually satisfactory decisions regarding the issues in dispute, with a view to the issues being resolved by the parties themselves rather than a decision being imposed by a court.  The advantages of mediation include: –

• the parties participating in the decision-making process and determining the outcome;
• less damaging to a future relationship or communication being maintained between the parties;
• significantly less expensive than contested court proceedings.

In Collaborative Law, both parties and their lawyers formally agree to stay out of the court system to solve disputed property issues.  Both lawyers are contractually bound to stay out of court, as they cannot represent their clients in court should negotiations fail.  In Collaborative Law, the lawyers work together as problem solvers for the parties.  In the Collaborative Law process, the parties control the result, the timing and the costs.  The Collaborative Law process is private and confidential.  It may be less expensive than going to court.

We can provide mediation and collaborative law services within our firm.  If we have not already explained those possible methods of resolution please ask.

Time Limitations

The Family Law Act imposes important time limitations as follows:

If proceedings are not commenced within the required time frame you may forever lose your rights under the Family Law Act, although in limited circumstances you may apply to the Court to commence proceedings out of time.  Please note that we cannot commence proceedings without your instructions to do so.

What the Court takes into Account

In an application for property settlement, the Court may alter the interests of yourself and your former partner in any property.  An Order made altering the interests in the property must be “just and equitable”.  The adjustment can include giving an interest in the relationship property to either you or your former spouse even though there was no previous interest in that property.  In determining what Orders should be made, the Court is required to take into account a number of factors set out in the Family Law Act 1975 and which can be grouped into two (2) major categories:-

1. Contributions made by each party to the acquisition, conservation and improvement of the property;
2. The relative financial strengths and weaknesses of each party.
3. Ascertaining what the property is at the time of the trial by identifying and quantifying the value of the property, which includes superannuation benefits.  The Court will have regard to the whole of the property of the parties when considering a property settlement;
4. Determining each party’s respective contributions to the property and to the welfare of the family.  In determining the respective contributions made by each party to the acquisition, conservation and improvement of the property, the Court is required to take into account both financial and non-financial contributions made, as well as contributions made to the welfare of the family (including any contribution made in the capacity as home maker or parent).
   1. The contributions towards the acquisition, conservation or improvement of the property are taken into account whether these contributions were made before, during or after the end of the relationship and whether the property belongs to either or both of the parties.
   2. Where one party has introduced significant assets into the relationship then that party will generally receive substantial credit for that initial capital contribution and this is particularly the case in respect of relationships of short term.
   3. The Court will also look at the financial and non-financial contributions made during the relationship to the acquisition (eg: purchase price) and to the conservation (eg: mortgage payments, maintenance and repairs) and to the improvement (eg: extensions and renovations) of the property.
   4. Non-financial contributions may include the value of a particular skill or expertise which one party has used in acquiring or building up the property assets.
   5. Any gifts made to one party during the relationship by a parent or relative would be regarded as a direct financial contribution made by that party to the relationship.
   6. The Court will decide on the facts as to the contributions of each of the parties in respect of the family and in particular any contributions made in the capacity of home maker or parent;
   7. Determining the respective needs and resources of each party under the Family Law Act 1975 by looking at “any fact or circumstance the Court considers the justice of the case requires to be taken into account”, as well as the age of the parties, health, income, property and financial resources, care of the child of the relationship who is under the age of 18 years, responsibility of either party to support another person, earning capacity, eligibility for a pension allowance or benefit, standard of living, the length of the relationship, and the extent to which the relationship has affected the earning capacity of each of the spouses, cohabitation with another person, payment of child maintenance.
   8. The fourth and final step is for the court to determine whether in all the circumstances it is “just and equitable” to make the orders for property settlement which are proposed from the operation of the previous three steps. This is the stage where the court considers the mix between actual assets and superannuation in the division of the property.