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Separating Property

Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for 21 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.

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.

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.

We hear many instances where couples reach an agreement to divide the property between themselves and without involving any third parties. They usually are trying to avoid the cost of engaging lawyers and often the agreement is not even in writing.

The common theme is that they want to get things over and done with quickly without incurring too much expense.

The dangers is that without the sanction of the court, these private deals are virtually useless and unenforceable.

What happens is that the parties go their separate ways and begin new lives, usually with new partners.

Years later, often when one party has accumulated wealth or has been left money in a will, their former partner comes out of the woodwork and brings a court application for a new property settlement.

Even though years may have passed, there is nothing to prevent them from doing this if the first agreement wasn’t properly sanctioned.

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.

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