Family law property division is a difficult time for any separating parties.
It is not the case that most parties to a relationship are able to split the money in their bank account, exit a rental agreement and leave with no other ties. Once the separation has occurred, it is important to deal with dividing property and liabilities and finalising your property settlement. We understand that this can be a stressful time, and we work hard to make sure that your matter is dealt with sensitively and professionally.
Most spouses have joint bank accounts, jointly owned vehicles, houses, and other assets, joint liabilities under loans and mortgages, and a variety of intertwined financial arrangements in place. Where there are self managed super funds, family trusts and businesses the situation can be even more complicated. It’s important to get good advice about property matters and from lawyers with an understanding of commercial and business structures.
Our family law team work closely with senior commercial and property lawyers in the firm to make sure that any property settlement arrangements not only resolve the family law matters, but also are business savvy.
Why you need to prioritise property settlement
Settling property issues should be given some priority, because Courts take into account assets that you currently have as well as what assets there were at separation. Courts don’t necessarily recognise informal agreements and may ignore them altogether so it’s important to get advice to make sure that your agreement will finalise your matter.
- If spouses are married
- they MUST finalise their property settlement, or apply to the Court for the Orders within 12 months of the date of divorce
- If parties were in a defacto relationship
- this MUST occur within 2 years of the date of separation
The property settlement process
If the Court is satisfied that it is just and equitable to make an order in relation to the property of the parties, it works through several steps to determine the property division:
- The first step in any matter involving property is always to clarify what property there is, and what debts or liabilities exist. It doesn’t really matter whose name the property is in – if it was owned during, or as a result of the relationship, an assessment will need to be made about whether it ought to be included in the property pool;
- The second step is to work out how each of the spouses contributed to the family both financially and in non-financial ways;
- The third step is to think about whether there are any special circumstances that require some adjustment to the property settlement amount, including for example future needs of the parties, whether a spouse needs extra provision to be able to retrain to be in a position to financially support themselves, the cost of caring for children of the relationship; and
- The final step is to work out the most just and fair way of dividing up the property and debts given the contributions of the parties and any future needs identified.
Given that “property” may often include business assets, trust assets (whether that be a Discretionary / Family Trust or a Unit Trust), and shares we have a Family Law team that includes experienced Commercial Lawyers who are able to assist in dealing with complex corporate, business and trust structures.
We recognise the value of settling matters early to save you costs and stress. We can assist in negotiating a suitable property settlement, preparing the documents to do with the settlement, and any conveyances and commercial and business structuring that is required because of the settlement. Of course, if your matter can’t be settled by negotiation or mediation, we can also represent you in Court.
