If you have separated, or plan to do so, you will need to finalise financial matters between you. If already divorced, there is a time limit for bringing an application for property settlement.
Where the separation is amicable and the parties can agree on the division of assets, and finalise their agreement by consent. Where the couple cannot reach an amicable outcome, as these matters are complex and most will want to obtain legal advice when wondering “where do I stand?”.
Working out the asset pool and how is to be split can be a complex or it may be that you are unsure of what you are entitled to or you may feel that the split is not fair. Either way, getting the right legal advice from a competent family lawyer is crucial.
We understand the nuances in simpler and more complex asset divisions and can help you understand the lens the court may apply to your individual circumstances. This will help you assess you situation and resolve the matter faster.
Whether you have a simple asset division or have family businesses and more complex assets structures we can provide the highest quality family law advice.
To speak to a family lawyer call us on 08 6181 0600 or, alternatively please complete the enquiry form on this page and we will respond to you promptly. All enquiries are treated as confidential.
If you agree on how your family property is to be divided, it is best to formalise this by obtaining consent orders from the Family Court. Alternatively, you may consider a binding financial agreement, although we do not advise this as it leaves uncertainty and is less cost effective.
To do nothing, and where a divorce has not occurred, may allow either party to bring property proceedings at any time. Where a divorce has been granted, there is a time limit for bringing such proceedings, but the time limit may be extended by leave of the court. This can cause anxiety and uncertainty for each party who wishes to move on. It can be especially problematic if a party diminishes the assets, or increases debts, in the asset pool.
It is always best to address the financial issues promptly post-separation.
A binding financial agreement, BFA, is an agreement which covers the division of property, superannuation and if required, spousal maintenance. A binding financial agreement is an agreement which covers the division of property, superannuation and if required, spousal maintenance. BFA is a private agreement, open to challenge and not necessarily enforceable if it is determined to be lacking in some way. BFAs require independent legal advice for each party for it to be legally binding.
Consent orders require a more detailed assessment of the assets and debts and the future needs and financial circumstances of the separating couple. Once accepted by the Family Court, consent orders are enforceable as an order of the court.
if you have been in a de-facto relationship at the time of separation, you need to address these matters within two years of separation. If you have been married, you must do so within 12 months after your divorce.
The Family Court has the discretion to extend the above time limits, and it will do so, in certain circumstances.
We can advise you as to factors that will determine what you are entitled to. Once we provided out advise, our clients are able to make informed decisions on ow to proceeds and as to what they will seek, which is at times far more that our client may have expected and in stark contrast to how much their former partner or spouse is suggesting they should agree to.
In determining your entitlements to property, a four-step process is undertaken pursuant to the Family Law Act 1975 (the Act), where the court sees it as ‘just and equitable’ in making an order for property settlement. This is determined, on a case by cases basis, and only once satisfied then the court will apply the general four step approach taken traditionally, in determining property settlement in matrimonial matters.
The four steps are as follows:
Value of assets
The value of assets to be taken into account when considering property entitlements is the value as at the date of the agreement for property settlement or the date of a hearing in the Family Court.
Upon, the asset pool, liabilities and financial resources of the parties being ascertained, the Family Court then takes into account the matters set out in Section 79 (4) of the Family Law Act.
When considering the financial contribution, the Court has regard to inheritances, gifts and assets owned by either party prior to the date of marriage or acquired during the marriage. The Court also has regard to who carried out the work that earned the income, or whether both parties were involved in income earning activities.
When looking at non-financial contributions to the acquisition, conservation or improvement of any property, the Court has regard to the work carried out by each party for which they were not paid. For example, this factor takes into account the building or renovation of property, gardening, landscaping, home maintenance, painting etc. carried out by one or other or both of the parties for which you could have employed a paid contractor.
The contribution made by a party to the welfare of the family, including in the capacity of homemaker or parent, covers tasks such as caring for the children and housework.
The Court will then make a determination as to what percentage should be attributed to each party’s contribution.
The section 75 (2) factors take into account such matters as the age and state of health of each party; the income, property and financial resources of each party; the physical and mental capacity of each party for appropriate gainful employment. In other words, this section refers to the needs of each party.
The first step is that we commence conferring by way of an initial letter to the other party or their solicitor, if legally represented, and set out your position, and where possible an offer to settle. The letter will contain your position, require disclosure from the other party and what you think is a just and equitable settlement. Sometimes, clients come to us having received a letter along these lines already and, as your lawyers, we would respond to that.
Once conferral has begun between the parties an agreement can be worked towards or reached. Where an agreement can be reached, the agreement is then formulated into orders and filed with the Family Court by consent. Where this is not possible, either the parties attend a private mediation by agreement or commence proceedings if no agreement can be reached as to mediation.
Commencing court proceedings in the Family Court, should always be the last resort, and after all avenues to reach an amicable resolution has been exhausted.
Majority of cases, never reach final hearing and are ultimately resolved by consent. Accordingly, we take the view that that consent should be possible prior to court proceedings commencing, either privately or through formal or informal mediation. This really just depends as to “how far” away the parties are from each other in terms of reaching an agreement. If the disagreement about how the asset pool should be divided is vast, and the amount of money involved is significant, this is typically when legal proceedings are commenced.
Where one party refuses to engage, court proceedings will have the effect of forcing the non-engaging party to engage.
Once a dispute reaches the Family Court, any division of assets must be ‘just and equitable’. This is the case, even if the parties are seeking a division of assets by consent.
One must remember that what a party may see as ‘just and equitable’ is not necessarily how the court may see it. We therefore consider that it is prudent and advantages, to assess what may be the likely division of assets awarded by a court, at the start and use that as a basis for orders sought.
If the matter is complex, involving a large asset pool or complicated business structures we would advise seeking formal advise from a competent counsel as to the likely division of assets, prior to commencing of any proceedings.
Regardless of the size of the asset pool, all property settlement disputes have their own complications, such complication impacted by the size of the asset pool, nature of the assets, and most importantly the attitude of each party. There may not only be children and the family home to deal with but also your business, family trusts or third-party claims. Having an in-depth knowledge and insight into how the law treats such matters, is an important first step when considering your property settlement after separation.
While most cases will generally involve the former matrimonial home and superannuation there are often scenario’s where there is much more that needs to be considered.
Appius Lawyers is a full-service law firm and we advise on and deal with commercial disputes, property disputes and leasing issues – in addition as well as family law matters. This nexus gives us a competitive advantage over purely family law firms as we can give you advice about most aspects of your case.
As a simple example, we have previously acted on behalf of a client who had a property portfolio and also a business that would be responsible for the purchase and development of land. We were able to consider not only the family law aspect of the client’s case but also point the client to an accountant who could assist in dealing with the various capital gains taxation issues arising from the sale of investment properties, held by the family trust.
Everyone’s circumstances are unique and our role is to assist you moving forward and helping you obtain the best outcome.
One of the primary benefits of hiring Appius Lawyers is that you’ll receive personalised service.
Appius Lawyers is much smaller than the mega-firm, but we offer clients expertise and creative solutions at a cost that many larger firms simply can’t match.
One of the top benefits of working with Appius Lawyers is having more flexibility when it comes to billing structure.
The great thing about working with Appius Lawyers is that we focus and take the time to learn your industry, to understand your business and what we can do to help it move forward.
Appointments can be made on a “face-to-face” basis at one of our offices or, alternatively, via telephone or Skype.
Once your appointment is “booked in”, you will be emailed a Client Interview Form to complete and return to us before our meeting.
For the most part, initial appointments will last around an hour, give or take.
All initial appointments at Appius Lawyers must be paid for either in advance or on the day of the consultation if you are coming into the office.
When you become a client at Appius Lawyers we will, first of all, assess the level of urgency in your matter.This is so we can arrange for the necessary legal and administrative resources to be allocated to your case. It will also determine how much you may have to deposit in our trust account for the requisite work to be undertaken.
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