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 breakdown of a relationship is usually an emotional and often distressing time in your life.
You still have careers to pursue, kids to raise and your personal health to maintain, all whilst your world appears to be falling apart.
Trying to sort out property settlements, parenting arrangements and maintenance issues can seem to be an impossible task.
After separation, many couples do not make the sorting out of their property arrangements a priority.
As a result, years can sometimes pass before an attempt is made to finalise these matters.
It is important to note that when your property settlement is being finalised the value of the asset pool will not be the values at the date of separation.
It may be that 2 or 3 years have passed since you separated. The pool to be divided will include any new assets that either of you have acquired or created since separation.
You may feel that the creation of a new asset (e.g. a business you started on your own) should be excluded from the pool because you feel solely responsible for its success. This may not be the case.
The pool will also include any increase in the value of property from the date of separation to the date of settlement. You need to be aware of this fact. It may be prudent to act quickly to sort out these issues.
Some couples reach amicable agreement about how their property pool should be divided and wish to record it in an agreement.
This is a great outcome that can mean a huge reduction in both legal costs and anxiety.
However, if the agreement is not approved by the court as a consent order. It will not be legally binding. The court must be satisfied that the settlement between the parties is fair.
Without the court sanction, the agreement may well be worthless and open to challenge at a later date. Sometimes years later.
The one thing most people want when entering into an agreement about property is finality. They want to move on with their lives, often with a new partner.
There have been many instances of couples who have sat down around a kitchen table and worked out the division of their property. They may scribble out a brief agreement and go their merry way, thinking they have acted very maturely and saved heaps of legal fees.
In fact, the agreement is completely open to challenge by either party at a later date.
It is recommended that both parties entering into a consent order for property seek independent legal advice.