Navigating a separation or divorce often comes with various legal challenges, particularly when the parties involved have accumulated assets and property during the relationship. It's important to seek advice from an experienced property settlement lawyer regarding the division of assets as soon as possible to ensure a fair and equitable outcome is acheived.
Our Family Law team will help get you through this difficult and often stressful time with clear and practical legal advice that will safeguard your finances.
Property Settlement After Separation
The Family Law Act provides for the division of property between married and de facto (including same sex) couples.
The law of property division can be very complex. Hede Byrne and Hall will assist you to navigate the approach taken by the Court, including the following considerations:
- Whether you or your partner/spouse are eligible for any property distribution from a relationship;
- The formulation of the pool of assets (and liabilities) for division between the parties;
- The financial contributions made by each party including any assets held at the commencement of the relationship, as well as earnings, inheritances or other significant funds provided by family, and lottery wins;
- The non financial contributions made by each party including maintenance of the home, role as homemaker and responsibility of the care of children.
- Any relevant conduct of the parties including excessive waste of matrimonial funds;
- The future needs of each party including responsibilities of the children, medical issues, prospects of inheritance and earning capacity.
The property settlement process involves identifying all assets and liabilities that existed at the time of separation, providing a valuation of this asset pool and then determining the appropriate division of assets between the parties.
There's a common belief that all property division is split 50/50 but this is not the case. The percentage split is determined by considering the financial and non-financial contributions of each spouse as well as their future needs. This wide range of factors need to be thoroughly assessed in order to reach a fair property settlement agreement.
The experienced Family Lawyers at Hede Byrne and Hall can assist you with determining the best avenue for resolution of your property settlement matter, whether that is by way of Consent Orders, Binding Financial Agreement or Court Proceedings.
What is considered "Property"?
The property pool is more than just real estate or money in bank accounts, property also includes vehicles, shares, family trust accounts, jewellery, investment properties, artwork, superannuation, businesses, savings and furniture and other possessions.
When identifying all relevant property that is to be considered in a settlement, it is irrelevant whether the property is owned by one party or by both. All assets owned by either parties is considered a part of the property pool regardless of whether it's owned individually, in joint names or with another person, or held by a company, partnership or trust structures.
For married couples, an application needs to be made to the court within 12 months after a Divorce order.
For de facto couples, an application for property settlement needs to be made within 2 years after the relationship ended.
In some circumstances, a married or de facto spouse may be required to pay spousal maintenance to their spouse after separation. Whether spousal maintenance is paid depends on one party’s capacity to pay and the other party’s need for financial support.
When considering whether to make an order for spousal maintenance the court considers the following:
- The age and state of health of each party;
- The income, property and financial resources of each party and their employment capacity;
- Whether either party has care of a child of the marriage under 18 years;
- The financial needs and obligations of each party;
- The responsibility of each party to support another person;
- The reasonable standard of living that a party has become accustomed to;
- Whether the receipt of maintenance would assist a party to undertake education or training to increase earning capacity;
- The extent to which the party has contributed to the property and financial resources, income and earning capacity;
- The duration of the relationship; and
- Any fact or circumstance which the Court considers relevant.
Spousal maintenance can be paid by way of periodic or lump sum payments. It's important to seek legal advice from an experienced family lawyer in order to determine the best avenue forward regarding spousal maintenance.
Binding Financial Agreements
A Binding Financial Agreement may be made in contemplation of (including pre-nuptial agreements), during, or after marriage or a de facto relationship. The agreement deals with how property and financial resources will be dealt with in the event of a breakdown of the relationship. It may also detail the spousal maintenance (if any) to be paid to either party.
In determining whether you need an agreement, you may consider the following:-
- Whether one party has significantly more assets than the other;
- Whether one party has significant debts;
- The income and financial resources available to each party;
- The requirements of a party to provide care for children; and
- The future needs of each party and their children (as applicable).
To ensure a Binding Financial Agreement is legally enforceable:
- The agreement must be in writing and signed by all parties;
- Each party must receive independent legal advice; and
- No circumstances exist (such as fraud, duress, unconscionable conduct or incomplete disclosure) which would cause the Court to set the agreement aside in the future.
Our team in Toowoomba, Roma and Warwick offices are experienced in dealing with the complexity of Binding Financial Agreements and would be pleased to assist you. Contact us for knowledgeable and practical legal advice regarding your Family Law financial issues and Property Settlement Proceedings today.
We have included a number of helpful articles about family law below:
- Fact or Fiction? Top 5 Myths About Family Law Property Settlements
- Family Law Property Settlements
- Six Things to Know About Binding Financial Agreements
- The Perils of Representing Yourself in the Family Court
- Family Separation: Things You Need to Know
- Why You Shouldn't Take Family Law Advice From Friends