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Seek advice in relation to your property settlement early
It is important you receive advice as soon as possible regarding the division of your joint assets, to ensure you understand the steps in finalising your property matter and the factors that will impact the division of property.
The value of your assets and liabilities will change between the date of separation and the date the property settlement is finalised. In different circumstances this will have positive or negative consequences, depending on your circumstances. It may be to your advantage to pursue and push for a property settlement as soon as possible. However, in other circumstances a delay in resolving the matter may be beneficial for you. You can read more about the impact of delay in property settlements here.
Married v. De Facto property settlement
The factors relevant in relation to a property settlement are largely the same for both married and de facto couples who have separated (including same sex relationships). We are able to assist you, regardless of the nature of your relationship.
Time limits to resolve your property settlement
You only have a limited time to resolve your property settlement after separation. Although the time limitations can be extended in some circumstances, there is no substitute for getting early legal advice about your options. Our experienced family lawyers are able to provide tailored advice for your specific circumstances, to ensure you understand the options and the best manner of progressing your property settlement.
To book an initial consultation with one of our experienced family lawyers to discuss your property settlement, please contact our office.
Steps to resolve your property settlement
There are several steps that will be taken in resolving your property settlement. Our experienced family lawyers will provide ongoing advice about each step, and your options in progressing your matter. Broadly, the steps in resolving your property settlement are as follows:-
Step 1: Identifying the asset pool in a family law property settlement
The first essential step in every property settlement is to identify the assets, liabilities and financial resources of both you and your former spouse or partner. This includes joint assets, liabilities and financial resources, and those that are held solely by one party or the other.
Both parties have an ongoing responsibility to provide disclosure of their financial position. This ensures the parties are able to accurately identify the asset pool to be divided during the property settlement. The obligation to provide disclosure is ongoing and will continue until your property settlement has been finalised.
You must comply with your obligation to provide financial disclosure to the other party. You can read more about the:-
- need to provide financial disclosure in our article Financial Disclosure in Property Settlement Cases;
- risks associated with hiding assets in a property settlement in our article Hiding Assets in a Property Settlement;
- options the court can have to set aside consent orders for a failure to disclosure information in our article Setting Aside Court Orders – Failure to Disclose Information.
It is sometimes necessary to engage valuers to identify the value of assets, including real estate. The valuers are often appointed to ensure the asset pool is accurately identified.
Once the asset pool has been identified, the parties can then progress the property settlement. It is very important you get legal advice to help guide you to ensure you get all the relevant information before trying to negotiate your property settlement.
Step 2: Assessing contributions in a family law property settlement
The next step in progressing your property settlement is to determine the contributions made by both you and your former partner during the relationship. To assist in assessing the contributions of each party, you will need to provide information about the following:-
- Financial contributions during your relationship, including:-
- the financial circumstances of both parties at the beginning of the relationship;
- major financial events during the relationship;
- the work history of both parties;
- any significant changes since separation.
- Any non-financial contributions of each party, including unpaid work which was financially beneficial; and
- Contributions of both you and your former partner as home maker and care provider for any children.
These factors are considered in assessing the contributions of both parties. It is important to understand the court will consider that some contributions are different, but equal. Each case will involve an assessment of contributions in percentage terms which is unique to your case.
The contributions of each party are an important factor in determining the division of the property pool, and the percentage of the property pool to be retained by each party.
Step 3: Determining whether there will be a future needs adjustment in your property settlement
A further relevant factor is the future needs of each party, which involves a consideration of section 75(2) or section 90SF(3) of the Family Law Act. There are certain circumstances where the court will consider it appropriate to make an adjustment in favour of one party or the other, to account for the future needs of the parties.
There are many different factors to consider in determining whether an adjustment is appropriate, including:-
- The age and health of each party;
- The income, property and financial resources of each party;
- The income earning potential of each party, and the physical and mental capacity for each party to maintain employment; and
- The care arrangements for any children of the relationship.
Our experienced family lawyers will consider your instructions in relation to the above information, and provide advice as to whether there is likely to be an adjustment in favour of either party. Each case is unique and will involve the family law solicitor weighing up many different factors in what will be the appropriate adjustment.
Step 4: Determining whether the division of assets in your property settlement is “just and equitable”
The final step in resolving your property settlement is to determine whether the proposed division of assets is “just and equitable”. The court will refuse to issue Orders to finalise your matter if the proposed settlement is considered “unfair” or unjustly favours one party (without a reasonable basis for this occurring).
Although the above information details the general steps taken to resolve a property settlement, each property settlement is unique. The manner in which your matter progresses will depend on your specific circumstances. It is important you seek legal advice to ensure you properly understand your options and the factors that will be taken into account in your particular situation.
How do I keep more of the property pool?
It is common for clients to ask what they can do to increase the share of assets they will retain when the property settlement is finalised. You can read more about this in our article Increasing your share of your assets.
You may also be able to claim spousal maintenance, should your reasonable living expenses exceed your income. You can read more about Spousal Maintenance here.