Property & Assets
What Happens if We Agree?
It is important to get legal advice and ensure you understand your rights and obligations before signing any agreement. There are only 2 ways in which you can finalise your property settlement and make it legally binding: through a Binding Financial Agreement or an Application for Consent Orders. Speak to our experienced family lawyers about what option may be best for you.
What If We Cannot Agree?
If an agreement cannot be reached, there are several steps that must be taken in accordance with the court’s pre-action procedures such as:
Make inquiries about, invite the other parties to and where it is safe to do so, participate in dispute resolution services, such as family counselling, negotiation, conciliation, or arbitration.
If dispute resolution is unsuccessful, write to the other parties, setting out their claim and exploring options for settlement.
Comply, as far as practicable, with the duty of disclosure by exchanging relevant documents.
Initiate proceedings within the Federal Circuit and Family Court as a last remaining option if an agreement is still not reached.
What Does a Property Settlement Include?
All your assets and liabilities should be included in the property settlement. This refers to assets owned by you or with another person, family trust, or company. Some examples of property that are to be included in the asset pool are as follows:
- Properties and land;
- Motor vehicles;
- Money, including cash and in bank accounts;
- Investments such as shares;
- Superannuation;
- Other assets such as inheritance monies and redundancy packages can also be included in the asset pool.
- Liabilities such as mortgages, loans, and credit cards are also to be included in the pool.
What is Considered When Assets are Distributed?
When you apply for a property settlement, the Court uses a ‘4-step’ process to determine the application as follows:
Firstly, the Court determines the value of the asset pool, which includes assets, liabilities, and financial resources (such as superannuation) in your own name, joint names, or assets held in any other entity in which either party may have an interest. This involves undertaking full and frank disclosure to ascertain the pool, and this may require formal valuations to be performed.
Secondly, the Court will assess each party’s contributions to the relationship. Contributions can be financial and non-financial, including contributions to the household and family in general, and consideration of assets brought into the relationship and contributions made during the relationship. Generally, a percentage weighting is given to contributions. However, there is no set formula as to how this is determined; it is discretionary and can vary.
Thirdly, the Court will assess each party’s future needs. In assessing ‘needs,’ the Court would look at things such as relative earning capacities, the state of health of the parties, and the need for the primary carer of the children to provide a suitable home for the children.
The final step is one whereby the Court ensures that in light of the circumstances of the case as a whole, the orders which it makes are ‘just and equitable’ or fair and reasonable in all the circumstances.
How Can I Protect My Property?
Keep track of all assets and debts until financial arrangements are complete. Once final Orders are made, whether it be by way of a Binding Financial Agreement or an Application for Consent Orders, having final orders financially severs the relationship between you and your former partner so that neither of you can re-enter into a further property settlement in the future. Especially in circumstances where one party increases their wealth, having final orders in place prohibits the other party from re-negotiating a further agreement or varying the current one. Whilst it is difficult to have final orders set aside, it is not impossible; however, it is difficult to predict future circumstances.
When Should I Apply for a Property Settlement or Spousal Maintenance?
We can apply to the court any time after separation, although we recommend having a property settlement as soon as possible. You must finalise your property settlement within a 12-month period from the date of your divorce. For de facto parties, you must finalise your property settlement within a 2-year period from the date of separation.
How can Northcote Lawyers help?
Understanding your rights and entitlements in a financial settlement be challenging. Northcote Lawyers is committed to not only guiding you through the process in a way that is clear and simple, but also ensuring you achieve a fair outcome. Our reliable team is dedicated to working with you to meet your specific needs and answering all your difficult questions.
To speak with one of our experienced family lawyers, please contact our office by phone or make a booking online.
(03) 9486 1661
We can help. Call now