Divorce and property settlement are different issues that are often handled separately. In some cases, parties agree on how to settle property and never obtain a final divorce order. In other cases, it is necessary to obtain a divorce order for reasons of legal strategy, or if the parties want to re-marry or simply have an emotional severing of the relationship.
The emotions surrounding the division of property arising from separation can be as strong as those involving children.
Your hard earned assets can be at risk and without careful thought and skilled assistance they may be unnecessarily lost to the other party. At Dimond Family Lawyers we can help you navigate what can sometimes involve technical and complex information and circumstances.
In some cases, it can be difficult to surpass the first hurdle of understanding what makes up the asset pool for division, particularly if you are finding separation difficult and emotional. Our team can help you map out what is to be divided and how to progress with constructive and objective negotiations.
Our team can provide tailored advice regarding how the Family Court may treat complex asset structures that may include but not be limited to corporate entities, trusts or other business arrangements and/or investments.
It is important that you have an understanding of your responsibilities and duties in relation to property. For example, in many cases, it is likely that any property that has been accumulated during your relationship will be considered as “joint property” by the Family Court, regardless of whose name in which the property is registered.
It is, therefore, important to understand that any actions taken by you (or your ex-partner) regarding joint property and its distribution must be dealt with carefully. Sometimes it is necessary to seek assistance from the Family Court to protect the assets from being distributed.
Regardless of your circumstances, our professional team can help you discover and protect the property to be divided between you and your ex-partner.
Whilst it is important to understand the assets acquired during a relationship, it is equally necessary to understand the effect of the liabilities, including but not limited to loans, mortgages, taxation liability, credit card debt and even a loan from a family member.
Our professional team can help you understand how these debts are treated in family law matters, and if necessary, refer you to a financial professional if it is necessary for you to obtain technical accounting or financial planning advice. We pride ourselves on our collaborative approach, and the ability to work with other professionals to reach the best possible outcome for you.
Contributions and Future Needs
When considering how to divide property between separating parties, firstly we consider the assets and liabilities (as described above), and then it is necessary to consider what contributions have been made by either party to the relationship.
Contributions are considered in many ways, including but not limited to:
- Initial contributions of each party at the commencement of your relationship;
- Financial and non-financial contributions made during your relationship by each party or on each party’s behalf (such as inheritances, gifts, redundancy payments etc.);
- The effect of any contributions made after the parties have
It is also necessary to consider factors that relate to the “future needs” of each party which may include, but not be limited to:
- Income earning capacity;
- Access either party has to any financial resource that is not otherwise included in the net asset pool;
- Current and future care of the children of the relationship; and
- Whether child support is being paid.
The contributions and future needs of the parties are considered and if necessary, a percentage loading is allocated to the relevant party which will have the effect adjusting the final division of the net asset pool away from an otherwise equal division.
What to do next?
In many cases, it is not necessary to commence litigation to finalise property matters if matters can be agreed by consent.
If you have agreed how your assets and liabilities will be divided between you and your ex-partner, then it is important that you formalise your agreement to protect you and your partner from any future claims against your financial interests.
To formalise your agreement, we can assist you in preparing a Form 11 Application for Consent Orders which is filed with the Family Court. Once your Application is assessed and approved, you will be issued with a Family Court Order in terms of your agreement.
You won’t need to attend Court and the Order will be enforceable.
If your agreement involves the transfer of property between you and your ex-partner, then a Family Court Order (received as a result of your Form 11 Application) will enable you to access an exemption from stamp duty that would otherwise be payable.
If there are issues that cannot be resolved by way of negotiation between the parties, lawyers, or through another form of dispute resolution or mediation, then our team can advise you on how to proceed, and if necessary commence litigation in the Family Court.