The Uncertainty of Separation
The process of separation can be an emotional rollercoaster, particularly when trying to negotiate the division of joint property. One of the biggest causes of stress can be not knowing how things will be divided and the uncertainty about your future.
The Family Law system in Australia encourages separated couples to reach agreement without a Judge having to make the decision for you. There are many dispute resolution services available, as well as services offered by the Courts once proceedings have started, that are designed to help you resolve your property matter sooner rather than later.
Division of Property
The Family Law Act sets out the factors to be considered when determining a just and equitable division of the property of a relationship. A good place to start is to identify and put a value on all of the assets, liabilities and the superannuation of each of you, whether in joint names or owned individually. If you are unable to agree on what things are worth, then you may need to engage a valuer to formally value the property.
If you are able to come to an agreement about how to divide the property, it is important to remember that “hand shake agreements” are not recognised by the Courts. Such a deal has no legal effect and cannot be relied on down the track if either of the parties decides to commence proceedings for property division.
The most cost effective way to resolve your property matters is with a Consent Order. This is an order made by the Family Court that finalises your property settlement, but you do not have to attend Court to get the order. You provide the terms of your settlement to the Court and as long as the settlement is considered “just and equitable” (or “fair”), then the Court has the power to make the order you have agreed upon.
There is a time limit for applying to the Court for a property settlement order. For couples who are married, you must commence the proceedings within 12 months of obtaining your Divorce Order. For de facto couples, you must have commenced proceedings in a Court within 2 years of separation.
Seeing a solicitor about your family law issues does not mean you will end up in Court. There is an emotional and financial cost of going to Court and understanding that there may be other options available to you might help to ease some of the stress and uncertainty experienced after the breakdown of your relationship.