A family law property settlement is in relation to dividing the assets, liabilities and superannuation of couples once they have separated. Property proceedings may be issued if either party is either present or ordinarily resident in Australia or an Australian citizen when the application is filed.
To claim ‘de facto’ and be able to apply for a property settlement, you must:
The deadline for issuing a property (or maintenance) application is 12 months after a divorce order has taken effect, except by leave of the court or consent of the parties.
For a de facto relationship, a party may apply for a property (and maintenance order) only if the application is made within two years after separation.
Either party may commence negotiations to divide up their assets, liabilities and superannuation after separation has occurred. If married, you do not have to wait until divorce is finalised.
Either partner may do this by communicating with one another whether verbally or in writing or through the assistance of legal representatives.
Dealing with property interests under Family Law is largely discretionary.
When the court considers what orders should be made, they will take into account:
There are four steps that the court generally considers when looking at or determining a property dispute:
In circumstances where parties have reached an agreement, it is important to reflect that agreement by way of a Form 11 Application for Consent Orders or a Binding Financial Agreement.
Once either of these documents are signed by both parties and, in the case of a Form 11 Application for Consent Orders filed with the court, then the agreement is binding on each party.
It is important to reflect any Agreement reached formally to ensure that there is a full and final settlement of property proceedings and that each party is now independent to regenerate their wealth or to protect you from the other party’s creation of debt.
If negotiations fail between you and partner, whether that be through legal representatives or communicating directly, it is always encouraged that the parties attend mediation prior to the filing of an application with the court.
If neither party is willing to attend mediation or mediation is not appropriate, then an application filed with the Family Court may be the necessary path to take to ensure your matter can be resolved.
It is important to seek legal advice prior to the filing of such an application before a court as the need to provide accurate evidence and comply with the pre-action procedures prior to filing, is often valuable.
In all States save for Western Australia, superannuation is included as part of the property pool for married couples and de facto couples.
In Western Australia, parties are still unable to split superannuation (current as at November 2019).
There are provisions in the Family Law Act that provide for parties to seek to set aside previous orders in the circumstances where final orders have been made.
It is important that you seek legal advice as to whether or not this step is appropriate for you and whether you would meet the provisions of the Act to open the door for reassessment.
Working through property settlement after separation is the biggest financial decision-making process. It is often an emotional and difficult time and can, at times, become bitter. Having specialised and highly experienced advocates working with you will assist you in making informed decisions that have security and longevity.
Contacting an experienced family lawyer is a crucial step in securing your future.
Whether you're only just considering separation or in the early stages of separating from your partner, or whether you're needing assistance with:
our team of experienced lawyers are here to help guide you through the family law system.