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Property
settlements
Finalising a property settlement is an essential step after separation, whether you're married or in a de facto relationship. We provide strategic, tailored advice to help you reach a fair and legally sound outcome without unnecessary conflict. Our team ensures your financial future is protected with solutions grounded in the Family Law Act.
The first step in determining how to divide property is to identify and value the property pool. This means all property in either joint or sole names held by you and your partner.
Property includes real estate, an interest in any business, company, trust or partnership, shares, cash in the bank, motor vehicles, boats and superannuation. Any liabilities of the relationship are also taken into account.
The next step is to consider the contributions made by both parties at the commencement of the relationship, during the relationship and after separation.
There are a number of different types of contributions including:
• Financial contributions, including any inheritances, gifts or lotto wins
• Non-financial contributions such as renovating a property
• Contributions as homemaker and parent
When looking to divide your property, it is necessary to look at factors into the future that may require an adjustment of the percentages.
These factors include:
• The age of the parties
• Any health issues
• What are the care arrangements for the children
• Is there any income disparity between the parties
• The effect of the proposed agreement on either party’s income
The final step necessary in dividing property is to apply the percentages to your property and consider how it can be divided so that is just and equitable (fair).
Matters such as whether assets are to be sold and whether superannuation should be split to achieve a fair outcome are considered.
If you reach agreement about the division of your property with your partner, it is important to have this agreement formalised by a Court Order so that neither party can come back later.
The agreement reached can be formalised by way of Consent Order (your agreement which gets filed in and made by the Court) or Binding Financial Agreement (detailed in Binding Financial Agreements Information Sheet).
You can find further information about finalising the agreement reached by you and your partner on the Family Court website.(https://www.fcfcoa.gov.au/fl)
Ultimately if you and your former partner cannot reach agreement, you may need to seek the assistance of the Court who will make the decision for you. It is important to get early advice about your property matters so that you can weigh up your options for getting on with your life.
If you are divorced, you have 12 months from the date of the divorce to file your proceedings in a Court. Parties may only bring proceedings outside of this time in limited circumstances.
For de facto couples, there is a 2 year time limitation from the date of separation with which to bring proceedings for a property settlement.
Spousal maintenance is a payment for financial support that can be made from one party of a relationship to another following separation that can be either an ongoing regular payment, or a one off payment.
Spousal maintenance may be claimed after separation by one party to a marriage, or a de facto relationship where separation occurred after 1 March 2009.
Whether or not spousal maintenance should be paid will depend upon:
• One party’s need for financial support; and
• The other party’s capacity to provide financial support.
Spousal maintenance will generally be paid where one of the parties earns the income and the other party has inadequate means of income or support following separation.
Spousal maintenance may be paid for a short period of time, or indefinitely. An indefinite order for spousal maintenance is only likely to occur if there is insufficient property to be divided to provide the dependant party with support.
In determining whether spousal maintenance should be paid, the following test must be applied:
• Whether there is a need for support by one party;
• Whether the other party has the ability to pay;
• Whether it would be appropriate for the payment to be made given all the circumstances.
Before making an order for spousal maintenance, there are a number of factors that a Court would consider, including:
• The age and state of health of the parties;
• The income, property and financial resources of each of the parties and their physical and mental capacity for employment;
• Whether either party has the care of a child of the relationship;
• The financial commitments of each party;
• Any responsibility to support another person;
• The eligibility of the parties for a pension, allowance, benefit or superannuation;
• A reasonable “standard of living”;
• Whether the maintenance would increase the earning capacity of the dependant person for education and training etc to earn an income;
• Whether the dependant party has continued to the other party’s income, earning capacity and financial resources;
• The duration of the marriage and affect on the dependant party’s earning capacity;
• The requirement to protect a party who wishes to continue their role as parent;
• The financial circumstances of cohabitation with another person;
• The terms of any property settlement Order or financial agreement;
• Any child support that has been paid or is payable;
• Any other facts that the Court considers relevant.
You must apply for spousal maintenance within 12 months after a divorce order, or within 2 years after separation for de facto couples.
The court may grant leave to apply for spousal maintenance outside of these time limits only if:
• hardship would be caused to one party by not granting the order; or
• at the time of the deadline the party applying was unable to support themselves without an income tested pension, allowance or benefit.
Spousal
maintenance
The Family Law Act provides for defacto and married couples who need financial maintenance after separation. However, as far as practicable the Court should make Orders that end the financial relationship between the parties and avoid any further proceedings.
resolution
Mediation
and dispute
At Phelan Family Law, we try to keep our clients out of the Court process. There is a better way to separate, and mediation and family dispute resolution is an important aspect of this.
Dispute resolution can help resolve both parenting and property disputes.
For parenting matters, dispute resolution is a compulsory requirement before you can commence court proceedings (unless there are circumstances of urgency or the relationship was violent).
Family law is not about the fight. You and your former partner can reach agreement respectfully and more cost effectively by reaching agreement yourselves.
There are 2 types of dispute resolution available to parties involved in Court proceedings for property matters:
1. Conciliation Conference; and
2. Mediation.
Dispute resolution is compulsory for both parenting and property matters. A conciliation conference is a partially court funded conference that takes place with a Registrar of the Family Court who mediates the dispute and assists the parties to reach agreement.
Because they are Court funded, conciliation conferences are reserved for families who are unable to meet the cost of paying for a private mediation.
Mediation is paid for by the parties.
The mediation will take place at a location to be agreed, and can take all day. Your lawyer will attend with you.
Dispute resolution involves both parties discussing the matter to attempt to reach a resolution.
If you are not comfortable being in the same room as your ex-partner, that request can generally be accommodated, and discussions can take place between the lawyers.
Be prepared going into dispute resolution to compromise – if you are not willing to compromise then you are unlikely to reach an agreement.
If you reach agreement at a conciliation conference or mediation you can sign the proposed orders on the day. However these orders will not be binding until they have been made by the Court in the form of Consent Orders.
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