Property Settlement Lawyer Adelaide
For most couples one of the more stressful aspects of the separation and divorce process is deciding how to divide the property of the relationship. Finalising the division of property, however, is important so that individuals can move on with their lives.
There is no presumption that the property should be split equally between the parties.
Property does not only refer to real estate. It includes all assets of the relationship such as:
- Real estate (even those held on trust)
- Business and commercial interests
- Bank deposits
- Artwork and other collectables of value
- Motor vehicles
- Recreational assets of value such as boats and caravans
- Liabilities including mortgages, personal loans and credit card debt
Property or financial settlements involve the division of assets and liabilities after a separation. A financial relationship exists whether you have been married or in a de facto relationship, and this relationship will continue to exist until an order is made, or a binding financial agreement is signed.
Remember, there are time frames for making an application for property settlement:
- Within 12 months after a divorce for married couples.
- Within 2 years after separation for de facto couples.
Binding Financial Agreements
A Binding Financial Agreement (BFA) is a legally binding document which sets out the property of the relationship to which you are entitled, and any spousal maintenance payable.
There are very strict requirements on what constitutes a BFA under the Family Law Act. Each party needs to receive independent legal advice before signing a BFA.
It can often be easier for parties to agree to a property settlement and jointly ask for this agreement to become a Court order. This is known as a “consent order”. No-one needs to attend Court, including any lawyers representing you.
Reaching an agreement with your former partner offers many advantages, such as:
- you make your own decisions
- you greatly reduce the financial and emotional costs of legal proceedings
- your continuing relationship as parents, if you have children, is likely to work better
- you can move forward and make a new life for yourself, and
- you may improve communication with your former partner and be better able to resolve disputes in the future.
You can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
- financial settlement (including superannuation entitlements)
- financial support (maintenance) of one spouse by the other, and
- any incidental issues.
To find out more about financial matters contact an experienced Scammell & Co. family lawyer.
We can meet at any of our 4 offices located throughout South Australia including Adelaide CBD, Port Adelaide, Walkerville and Gawler. Call or email us today to speak with a lawyer about your circumstances, or to book an appointment at an office convenient to you.
Click on the questions below to reveal the answer:
My former partner and I have separated. Is there an automatic 50/50 split of our assets?
No. Every property settlement is different and your interest will need to be determined based on the following:
- What is the net value of the matrimonial pool of assets?
- What contributions (financial or otherwise) did each party make during the relationship?
- What are the future needs of each party?
- Whether the agreement is just and equitable?
We recommend that you obtain legal advice on what your likely property settlement entitlements are before you negotiate with your former partner. You otherwise run the risk of prejudicing your case by agreeing to a settlement that is less than your legal entitlements.
Do I need a lawyer if I can agree on a division of property with my former partner?
It is in your interest to instruct a lawyer to draft the documents required to ensure your settlement is final, enforceable and binding. Those documents need to be carefully drafted so that the effect you both intended is properly recorded with no hidden surprises, and to avoid a future claim from your former partner.
Without a Court order or a Binding Financial Agreement, your informal agreement would not be legally enforceable under the Family Law Act and could be altered at a later date to your disadvantage. You could find yourself liable for your partner’s debt, or subject to a claim on property in your sole name, even for those acquired after separation.
While Consent Orders can be entered into without legal advice, you may be at risk if you agree to a division of property by Court Order without first seeking legal advice. We recommend that you obtain advice so that you are well informed of your entitlements and any potential disadvantages to you before entering into an agreement.
If I live with my partner who owns the home we both live in, do I have an interest in the home?
If I inherit money during my relationship, do I get to keep it all if we separate?
Do I need a new Will when I separate?
Yes. People often separate but forget to change their Will. This means your former spouse could inherit your estate with his/her children. Your new partner might potentially miss out unless he/she challenges your Will through messy and expensive Supreme Court proceedings. This can be avoided by making your intentions clear in a new Will after you separate.
Whenever a married couple separate, each person should renew his/her Will, ensure they have appointed Powers of Attorney and Guardianship, and if necessary change the nominated beneficiary of their superannuation funds.
How do I keep legal costs down?
For some applications to the Court, we can help determine if you qualify for a reduction or exemption from the Court filling fee. This can result in savings of several hundreds of dollars.
There are also situations where we can offer to defer payment of our fees to final settlement.
For all other situations, your legal costs can be minimised by:
- Responding to correspondences from your lawyer in a timely and complete manner;
- Sending your lawyer an agenda of your questions before you meet;
- Making 2 copies of documents that need to be disclosed (one for your lawyer and one for your former partner or his/her lawyer);
- Producing documents sought from your lawyer in the first instance; and
- Considering whether the value of the matter in dispute outweighs the legal costs involved.