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:
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:
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 can make a financial agreement before, during or after a marriage or de facto relationship. These agreements can cover:
No. Every property settlement is different and your interest will need to be determined based on the following:
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.
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.
Your direct financial contributions towards the property (e.g. home loan repayments or renovations), and your other contributions such as home-making, parenting and handy-work, will be considered when dividing property. It is therefore most likely that you will have an interest in the home. Scammell & Co. can assist you to determine whether you have a claim on your current or former partner’s property.
Not necessarily. The inheritance money you had not spent by the date of your separation would likely form part of the asset pool for division between you and your partner. Similarly, if you used the money to purchase assets, they could also form part of the asset pool. Careful estate planning prior to separation may allow you to maintain control over the inheritance. Scammell & Co.’s experienced solicitors can provide you with tailored advice on your particular circumstances.
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.
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:
