The division of property between separated parties is subject to the overriding principle of what is "just and equitable" in the circumstances.
All property of the relationship is open for consideration, whether it registered in joint names, or in either party's sole name.
In considering what might be a just and equitable division of property, the following process is adopted:
When separating, both parties are under a duty to provide full and frank disclosure of all relevant matters (Chapter 13, Family Law Rules 2004).
When collating a schedule of assets and liabilities, it is important to collate a schedule that is as accurate as possible.
With regard to real property, if the value if not agreed, you might consider obtaining one or more appraisals from an agent. We suggest you avoid obtaining a licensed valuation unless the valuer is agreed in advance with the other party.
If you intend retaining a particular property, you may need to seek financial advice regarding your financial capacity to secure any encumbering mortgage.
The value of furniture, chattels, personal items and motor vehicles/boats/trailers/recreational items should be assessed based on their second hand value . You may find it helpful to look at second hand internet sale sites; make sure to keep copies of your online searches/valuations.
Provision of bank statements for all accounts in which you have an interest - at least since separation - is a common requirement, including savings accounts, credit cards and mortgage/loan documents. It might be necessary to consider whether any available drawdown facility needs to be protected through the implementation of joint signatories.
Consider the value of any shareholding/s you may have and/or the market value of any corporate entity of which you are a director. In complex financial matters, it may be necessary to obtain a formal valuation of a corporate entity and/or trust to progress negotiations; this is often obtained after reaching agreement upon the identity of an independent business valuer.
We 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.
Superannuation information is now easily accessible through your MyGov login, as should your Notice of Assessments for previous financial years.
Consider any personal loans from family (supported by loan documentation), hire purchase agreements, car loans or other personal loans - do you have statements/financial transaction listings you can access?
Do you or your ex-partner have any outstanding taxation liabilities - how and when did they start to accrue? You might ask your accountant to provide you with a printout from your ATO Integrated Account (Portal)
The list of assets and liabilities above is not exhaustive - but a good starting point.
It may be necessary to consider whether protections are necessary to prevent the assets of your relationship from being distributed wtihout your knowledge or consent.
In some circumstances it is necesary for us to work collaboratively with other professionals such as accountants, financial advisors, settlement agents and other law specialists to achieve the best possible outcome for you.
No matter whether your matter is simple or complex, our team will be able to provide practical and tailored advice regarding how to maximise the assets you retain as a result of any final settlement.
Call us now on (08) 9443 1111 or send us an enquiry through our Contact Form to discuss how we can help you progress property settlement matters to final resolution.
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 at the Family Court. Your application will be assessed by a Registrar of the Court. If the Registrar considers your proposed division is just and equiable, an order will be extracted in terms of your order sought.
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.
Your agreement may involve the transfer of superannuation, in which case, you will need to provide the Court with written approval from the trustee of the fund from which the transfer is being made; we can obtain this on your behalf.
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.
You can trust that our experienced professional team can provide you with practical and strategic advice to help achieve a positive and functional outcome.