Disentangling a family’s financial affairs upon separation can often seem like unscrambling an egg, especially where there has been a long relationship, businesses, trusts and other complex financial structures. Undertaking this process can leave you feeling overwhelmed, which is why you need the guidance of your family law solicitor to support you through the best way to obtain, disclose and critique the other parties disclosure documents.

Irrespective of how long you have been in the relationship, whether you are de-facto or married, this process must be done.  At Owen Hodge Lawyers, we have simplified the process so that you can understand what it is that is required of you, and how you can do this in the most efficient way.

Prior to accepting or rejecting any offers of settlement from your spouse you should seek advice from a family law solicitor as to whether the offer is within the reasonable range of what you should expect.

When looking at a property settlement the Court will undertake a four-step process:

  1. Assess the assets, liabilities and financial resources of the parties, both in Australia and/or overseas to establish the net pool of assets available for division;
  2. Consider the contributions (financial and non-financial) made by each person to those assets, initially, during the relationship and in some circumstances post-separation;
  3. Look at the future needs of the parties, taking into account the factors that may impact on the parties overall entitlements, such as the care and control of children, health concerns and earning capacity; and
  4. Once all the above is assessed, whether the overall conclusion is just and equitable in all the circumstances.

Family law is a jurisdiction of law that is highly discretionary and every case is different. There is no “one size fits all” approach. What your neighbour achieve as a percentage outcome is not indicative with what you may receive. That’s why it is important to seek advice about your particular circumstances.

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 documents 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 via 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

Consent Orders

The best way to formalise your agreement with your former spouse is to document it in an Application for Consent Orders.

An application for consent orders is a court document that identifies all the assets liabilities and superannuation interests of the relationship and outlines the agreement that you have now reached. Once your terms of settlement and application has been completed and executed by both parties and their solicitors then it is filed with the Court for judicial review by a Registrar. The Court considers the agreement in light of your circumstances and in accordance with the law to ensure that the agreement is within a reasonable range of settlement that you would otherwise expect to receive if determined by the Court themselves.

There is the ability to agree on a settlement that is favourable to one party more so than the other however it must be just and equitable in the circumstances.

Many people seek to save costs and try to draft an agreement themselves. Unless the agreement is in its proper form and filed with the court it is not legally binding.

There are many benefits to seeking advice from an experienced and qualified family law solicitor when drafting your agreement, including advice in relation to stamp duty exemptions and fee reductions upon filing.

For more information please contact us for an appointment.

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 determining an application for property settlement, the Court follows four basic steps which are as follows:

  1. Identify and value the property and financial resources of each of the parties;
  2. Identify and assess the contributions made by each of the parties being financial contributions, non-financial contributions and contributions to the welfare of the family (including contributions as a homemaker and parent). This step requires the Court to retrospectively assess contributions made by either party during the relationship;
  3. Identify and assess what is referred to as “the future need factors”. This essentially requires an assessment of the respective needs, resources and earning capacities of each of the parties. In assessing the future needs of the parties, the Court takes into account the following factors:
    • The age and state of health of each of the parties;
    • The income, property and financial resources of each of the parties and the physical and mental capacity of each of them for appropriate gainful employment;
    • Where the other party has the care or control of a child of the marriage who has not attained the age of 18 years;
    • Commitments of each of the parties that are necessary to enable the parties to support himself or herself and a child or another person that the party has a duty to maintain;
    • The responsibilities of either party to support any other person;
    • The eligibility of either party for a pension, allowance or benefit;
    • Where the parties have separated or divorced, a standard of living that in all the circumstances is reasonable;
    • The extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party by enabling that party to undertake a course of educational training;
    • The effect of any proposed order on the ability of a creditor of a party to recover such debt;
    • The extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party;
    • The duration of the marriage and the extent to which it has effected the earning capacity of the party whose maintenance is under consideration;
    • The need to protect a parties’ wishes to continue that parties role as a parent;
    • If either party is cohabitating with another person, the financial circumstances relating to the cohabitation;
    • Whether any child support is being paid;
    • Any other fact or circumstance which the Court thinks relevant.
  4. After considering all of the above, the Court must make an overall assessment that is just and equitable.

There may be many factors that influence the way in which contributions and future needs adjustments are made and therefore it is best to seek advice at the initial stages of your matter. Family law is a complex area of law that requires a sound understanding in commercial, property, criminal and equity law. At Owen Hodge we strive to provide you with the necessary advice to practically guide you through the complexities that may confront you during the settlement process.

What About Superannuation?

Each party’s superannuation funds are also considered part of the assets to be divided. The Family Law Act 1975 (Cth) provides that superannuation may be “split” between the parties to enable parties to divide all the assets including superannuation as agreed or where there is no agreement, as determined by the Court. In some circumstances, superannuation is treated separately and distinct as its nature and characteristics may have been such that there was no contribution to the superannuation interests.

The family law jurisdiction has a wide discretion when it comes to the division of assets and therefore it is essential that you seek advice from an experienced family law solicitor in relation to your assets before engaging in negotiations with your ex-spouse.

Reach out to our team of family law solicitors and make an appointment for an initial consultation today so that you are well informed of your rights and entitlements.

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