Disentangling a family’s financial affairs in a divorce can often seem like unscrambling an egg. It also sometimes takes time, attention and emotional resources that might be better spent in planning for the children’s welfare or getting on with establishing a new life. The task is the same for de facto couples. Nonetheless, it must be done. The process may seem more manageable if it is broken down into two possible broad options:

  1. You and your ex partner can reach an agreement by consent without the need to engage in costly and lengthy court proceedings. In this case you will need the help of your family law solicitor to document your agreement.
  2. You and your ex partner cannot agree and an application to the Court is made to have the matter determined by a judge. Your family law solicitor will help you understand your entitlements and undertake all necessary preparation to engage in court proceedings.

It is important to note that even if you and your partner have reached an agreement by consent it is absolutely imperative that the agreement is documented in a legally binding and enforceable format so as to protect both parties from any future claims against each other’s property. The options for documenting agreements by consent are discussed further below.

In the unfortunate circumstance that you and your ex spouse cannot agree on how to divide the property of either or both of the parties then it will be necessary to make and application to the court to determine each party’s respective entitlements. The way in which the court determines a family law property matter is discussed further below.

Do You Want to do it the Easy Way or the Hard Way?

There are two alternatives, you and your ex can settle your property by consent or by going to court. Settling by consent has two variations of its own. Basically, a couple can make an agreement between themselves as to how property should be divided. This must then be formalized in one of two ways: either through a Binging Financial Agreement or a Consent Orders. Most separated couples find that this alternative, in either of its variations, saves time, money and stress.

Alternatively, if no agreement can be reached an application for a property orders must be filed at either the Family Court or the Federal Circuit Court. The Court will then use their discretion to determine who gets what on the basis of full disclosure, evidence presented by both parties and a final hearing. The Family Law Act (1975) as well as established precedents provide a framework in which the court must work within to decide each party’s entitlements.

When You Agree on the Division of Your Property

Binding Financial Agreements

Couples may actually enter into a binding financial agreement before marriage, in which case it is known as a prenuptial agreement, or during a marriage, as well as after separation. In any case, the hallmark of such an agreement is that, to be legally binding, it must be based on independent legal advice received by each party and must be signed by both parties. The assurance of full disclosure and fairness, to the extent that it exists, arises from the independence of the financial advice.

Consent Orders

A Consent Order is simply a written agreement that becomes legally binding when filed and approved by the court. The court must be satisfied, on its review, that the agreement is just and equitable. Neither party needs to attend court. Consent Orders are the preferable method to settling a family law property matter by consent. As they are filed at and approved by the court they have that extra seal of enforceability that cannot be 100% guaranteed with a binding financial agreement. They are final and binding and are may only be set aside in exceptional circumstances.

Our team of family law solicitors have in depth knowledge and expertise in drafting Consent Orders and preparing them for filing. You will not need to attend court and you can rest assured that your matter will be handled diligently and professionally with as little stress as possible.

When You Can’t Agree on Property Division

How Does the Court Determine Property Orders?

In this situation, the court essentially takes over the task that the divorcing or separating couple cannot complete themselves. In doing so, the court will consider four factors, which are essentially the same four that would have been considered by independent legal advisers to formulate an agreement by consent. The court generally adopts a four step process:

  1. Assess the value of the parties’ net matrimonial asset pool by determining the total value of all assets and superannuation owned by either or both parties and subtracting any liabilities. Courts cast a very wide net, including property acquired before or during the marriage, as well as after separation, business assets, superannuation funds (discussed below) and assets that either party does not own outright but over which he or she has influence, control or prospective entitlement.
  2. Assess each party’s respective contributions to the marriage, including non-financial contributions made as a homemaker or parent.
  3. Assess the future needs of each party based on factors including age, health, parenting responsibilities, financial resources and capacity for employment, the standard of living that is reasonable under the circumstances and the financial implications of new relationships.
  4. And finally assess the overarching practical implications of the contemplated division and assess whether it is just and equitable, which of course, implies that it may not be an equal division.

Adjustments may be made in favour of either party at each of the above-listed stages depending on the finding of the court in respect of each stage.

What About Superannuation?

Each party’s superannuation funds are also lumped into the sum of assets to be divided. The Family Law Act now provides that superannuation may be “split” between the parties to enable parties with a large disparity is superannuation values to come to share the super and non-super assets as agreed or as determined by the court.

The division of superannuation funds must be a consideration whether the property settlement is being accomplished through a financial settlement agreement, Consent Order or Property Orders made by the court.

A property settlement is very often the last step in untangling a relationship. In those rare situations where the divorced or separated couple had previously executed a binding financial agreement or prenuptial agreement, the process can be relatively straightforward. Very often it is not.

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