When two people separate after marriage or after living together, they need to agree about dividing their property.
At Capital Lawyers, we have a team of highly experienced property settlement lawyers. They can help you work out how to your divide income, assets and debts.
Property settlement decisions can be complex and stressful, and short-term arrangements can have long-term consequences. Capital Lawyers can help you achieve the best possible long-term outcomes.
Paul Crabb, our Family Law Division’s supervising director, has practiced in family law for the past 10 years. He has represented many clients in their divorce, property settlements and children arrangements, both in the A.C.T. and NSW. Paul has a great interest in this area of the law, and has undertaken post-graduate study in family property settlement law. Capital Lawyers was one of the first law firms to introduced “fixed fee” services for many family law dispute issues. This allows clients to know that there are no hidden costs when they plan for their future. Capital Lawyers also undertakes legal aid funded clients in this jurisdiction.
After a relationship breaks down, there are a number of financial matters to consider, including:
- How to divide assets such as real estate, shares, cars, jewellery, savings, furniture and effects;
- Splitting of superannuation;
- Whether one spouse will provide financial support for the other; and
- Arrangements for the financial support of any children from the relationship.
Property settlements can be achieved by negotiation and mutual agreement or failing that, by Court proceedings.
Reaching a settlement out of court saves you and your family considerable time, stress and money.
You can formalise and out of court settlement by entering into a financial agreement or by a consent order.
Similar to the well-known pre-nuptial agreements, Financial agreements are signed before, during or after a marriage. Under Section 90D of the Family Law Act, a financial agreement covers division of property, finances and debts after marriage breakdown, superannuation, spousal maintenance and other incidental issues.
For the agreement to be legally binding, both parties must have signed it and have received independent legal and financial advice before signing.
Consent orders are a written agreement that is formalised and approved by the Court and is thus legally binding. You don’t have to go to court to file consent orders.
Consent orders can cover the transfer or sale of property, superannuation splitting and spousal maintenance.
Please note: consent orders about property matters can only be made where the couple has been married. They cannot be made for child support departure applications.
Consent orders are filed with the nearest Family Law Registry. There is no filing fee involved. However, the court must be satisfied that the orders are properly drafted and that the terms of the agreement are “just and equitable” before entering a consent order.
If no agreement can be reached out of court then an application for property orders must be submitted to either the Family Court of the Federal Magistrates Court. It must usually be made within 12 months of your divorce becoming final.
The Court will consider the following:
- The net asset pool of both parties.
This comprises the total value of all the assets owned by either or both parties. It includes everything acquired before or during the marriage, as well as after separation. The Court will also consider other financial resources over which a party has influence, control or prospective entitlements.
Ascertaining the net asset pool can be very complicated. To accurately value assets, many factors are considered, such as issues relating to taxation, stamp duties, and the appreciation or depreciation of asset values.
- Contributions from both parties, before, during and after the relationship
There are many different types of contributions to be considered, including:
- initial contributions (assets attained before marriage)
- financial contributions
- non-financial contributions (as a homemaker or primary carer of children)
- gifts, bonuses and inheritances
- The future needs of both parties.
The Court takes into account a number of factors when deciding on the future needs of both parties, including:
- Age and health
- Capacity to earn money
- The property and assets of each party
- New relationships (and new financial circumstances)
- Future parenting responsibilities (care and support)
- The practical effect of the proposed property settlement
The Court will consider the practical effect of the proposed settlement, and whether it is “just and equitable” to both parties.
At Capital Lawyers, our team of experienced lawyers can give you comprehensive advice about your legal rights, entitlements and obligations, and the different options available to settle any matters of which you and your partner may disagree.
We are committed to giving you sensible, practical and realistic advice.
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