Following the breakdown of a marriage or a de facto relationship, it is necessary to determine how the property of the parties will be divided. A property settlement will consider the property owned by the parties jointly and by each party individually. It will consider the property owned by the parties at the time of the property settlement, rather than of the time of separation. The property that will be considered includes all assets, liabilities and financial resources of the parties.
A Property Settlement would consider:
- Homes and investment properties;
- Funs held in financial institutions;
- trusts, companies and partnerships;
- other assets such as motor vehicles, boats, etc;
- superannuation and self-managed superannuation funds;
- personal loans;
- vehicle loans;
- credit card debts;
- rent to own debts; and
- any other asset or liability held by either party.
The assets, liabilities and financial resources of the parties as stated above must be identified and the value of each of them must be established. This includes the assets, liabilities and resources of the parties jointly and of each party individually. Assets are all property or interests owned wholly or in part.
Liabilities are debts which are owed. Financial interests are possible future assets, such as superannuation accounts, trusts and inheritances. This process results in a determination of the total value of the property of the parties, which is referred to as the ‘Property Pool’.
Family mediation is a process by which separating families can reach agreements about the care of children and the split of property without the need for litigation. It is compulsory in Australia to attempt to resolve family matters in Family Mediation before applying to Court for orders.
It is important to know that it is not just financial contributions that need to be taken into account. Non-financial contributions are also critically important. This can include unpaid duties, including the parenting of children, homemaking duties, and the labour involved in renovations and the general upkeep of property.
Other matters which you need to consider outside of the property and non-financial matters include;
- The parties age
- Physical and mental health;
- The parties earning capacity;
- The care of any children (particularly children under 18 years of age);
- Any background of domestic violence.
If the parties can come to an agreement on how the property will be divided, that agreement can be formalised in either a Binding Financial Agreement or Consent Orders which are presented to the Court to be finalised. Each approach has advantages and disadvantages and may be appropriate or inappropriate depending on the circumstances of your matter. If an agreement between the parties cannot be reached, an application to the Court for a property settlement Order will be required.
If applying for consent orders or seeking the court to decide the property split for you, the court will only make the split if it is just and equitable in all the circumstances of the case. In doing so, consideration is given to both the amount of property which would be retained by each party, as well as the type of property retained by each party. If required, changes may be made to the proposed adjustments to property interests to achieve a division that is just and equitable.
Property Settlements have time limitations attached to them. An application for property settlement needs to be made either 12 months from the date of divorce, or two years from the date of separation. The courts can grant leave if you need to file outside these time limitations. However, if you need to make this application, you will need to demonstrate that you or your children will suffer hardship if the leave is not granted, and you will will further need to demonstrate the explanation for the delay.
Our Team of Family and Property Settlement Lawyers can guide you through the legal process of seeking a fair settlement as quickly as possible.
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Many people have the mistaken belief that, at the end of a relationship, the property is supposed to be divided between the parties on a 50/50 basis. This is not the case. Under the Family Law of Australia, the Court has a wide discretion in deciding the property settlement entitlements of each party in the...
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In some situations, through mediation, the parties involved in a separation can reach an agreement for the division of property and assets. Our Family Lawyers can assist you in formalising your agreement quickly and economically. Where a Property Settlement cannot be reached by negotiation with Family Solicitors, the Family Court Brisbane will need to determine an appropriate settlement after considering a number of key factors including:
- All assets and liabilities;
- The financial resources of each of the parties;
- The level of financial and non-financial contribution each party made to the property and the welfare of the family; and
- The future needs of the parties.
A mutual agreement can be formalized through a Financial Agreement or through Consent Orders in the Family Court.
Establishing the correct value of the properties, businesses and other assets is essential in determining the true present market value of the asset pool under consideration. Our Family Lawyers can advise you on the necessary approach to assist you in receiving a fair outcome.
PROPERTY SETTLEMENT NEGOTIATIONS CAN BE COMPLICATED
Which is why it is important to obtain legal advice from a family lawyer in Brisbane to ascertain your legal entitlement as part of the property settlement.
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