PLEASE NOTE: As at 27 December 2023, this law firm has reduced its services and now ONLY provides legal advice and representation in the areas of Employment Agreements, Legal Waivers and Governance documents.
Once you have decided that your separation is final, it is a good idea to try and finalise all financial matters between you and your former partner. This is particularly important because the law takes into consideration any assets or liabilities that are accumulated after you have separated.
So that a family lawyer can give you accurate advice, it is important to gather together as much information as possible. This includes bank accounts, property valuations, vehicle details, trusts, credit card debts, loans, mortgages, shares and superannuation. Superannuation is a very important asset in family law property settlement and it is important that you gather information about yours and your former spouse’s superannuation entitlements. Property settlements often involve a “split” of one person’s superannuation fund.
Establishing the asset pool – ie everything that each of you own and everything that each of you owe as at the date of property settlement.
Considering financial and non-financial contributions each of you made to the asset pool – this could include what each of you owned when you got together, each of your employment history, whether any significant gifts or inheritance’s were received during the relationship and whether one person took on a more substantial role as homemaker and parent.
Assessing future needs for you both, including each of your health, earning capacity and whether either of you will have the care of young children.
The final and most important step in the process is working out what is just and equitable in all of the circumstances.
Once you have gathered all of this information, your lawyer will negotiate with your former spouse or their lawyer about what would be a fair and reasonable property settlement. If you reach an agreement you do not have to go Court. You can make your property settlement legally enforceable by applying for Consent Orders, where the Court formally approves the settlement, or by entering into a Binding Financial Agreement.
If you are unable to reach an agreement, you must show that you have made a reasonable effort to resolve your property settlement before going to Court. This often involves going to mediation through a private mediation service. If you are still not able to reach an agreement at mediation, an application can be made to the Court seeking financial orders relating to division of the total asset pool.
Time limits apply
If you cannot resolve your property settlement issues by agreement and need a Court to decide, you need to file an application with the Court for property settlement within 12 months your divorce becoming final.
If you were in a de facto relationship, you have two years after separation to make an application to the Court for a family law property settlement.
If you have not applied to the Court for a property settlement within these time limits, you must request special permission from the Court to apply out of time and set out the reasons for the delay. This request may not always be granted.
