The breakdown of a marriage or de facto relationship can provoke intense disputes as to ownership, value and distribution of property. As such, finalising property settlement is often a major step in helping separated couples move on with their lives.
Do I have to go to Court to get a property settlement?
The first question that might come to mind is whether or not you actually have to go to Court to get a property settlement with your former spouse. The simple answer to that is no! In fact, most family law property matters can be resolved outside of court which can save you both money and time in avoiding potentially lengthy and emotionally taxing litigation. Whilst the court may be involved when seeking to formalise a settlement, actual attendance in court likely will not be required when an agreement is reached.
Read on below to get an understanding about property settlement matters and how your entitlements are calculated.
What is disclosure?
Disclosure in Family Law is an essential part of any property settlement, as it allows you to understand and identify the value of the property pool and whether the value of any assets are in dispute. Without knowing what the property pool is, it is very difficult to know what your entitlements to property settlement are and agreeing to any property settlement in such cases can be risky.
As such, both parties to the dispute have an obligation to provide full and frank disclosure to one another under the pre-action procedures set out in legislation. Ideally, this process should start as soon as possible and will allow you to smoothly transition to the next step of engaging in negotiations to settle property matters.
Considerations to determine a party’s property interests
Whether you were married or in a de facto relationship, there are 5 steps that a Court considers when determining how a property pool should be split. Those steps are:
- Whether it is just equitable to make an order in the first place. This step is generally satisfied if you and your former spouse have intermingled your finances, as an example;
- The next step is to identify the property pool, as we described above;
- The third step is to consider the contributions made by each party (more on this step below);
After that, it is necessary to consider the section 75(2) and 90SF(2) factors, which are also known as the “future needs” factors (see below for more details on this step); and - The final step is to consider whether the settlement is “just and equitable” given the circumstances of the case.
Undertaking disclosure will assist with the second step above, in ascertaining the property pool available for distribution.
Contributions
The third step in the property settlement process is to assess contributions. These are direct and indirect, financial and non-financial contributions made by each party or certain contributions made on their behalf.
Financial contributions may include the income earned by you as well as any gifts or inheritances received during the relationship. Non-financial contributions include any work such as renovations that increased the value of a property, as well as each parties’ share of homemaker and parenting duties. This includes things such as cleaning, cooking and raising children.
Future needs
Sections 75(2) and 90SF(2) of the Family Law Act relate to the future needs of the parties which are considered when determining property settlement entitlements. Future needs generally refer to factors such as:
- the age and health status of the parties;
- the income of each party and whether there is any income earning disparity;
- any factors impacting the parties’ income-earning capacities;
- the future parenting arrangements for the children.
Time limitation for property settlement
The Family Law Act provides that separated married couples have 12 months from the date that a divorce order takes effect to file an application for a property settlement and/or spousal maintenance. For de facto couples, the time limitation is 2 years from the date of separation. If you miss this time limitation, you will be required to obtain permission or “leave” from the court to proceed with any such application out of time which may or may not be granted, depending on the circumstances.
Seek legal advice
Knowing your entitlements to property settlement is an essential part of achieving the best possible outcome for you in your family law matters to enable you to make informed decisions. However, this may not be as easy as it seems, as there is no universal or specific formula to divide the property pool.
Working out what a party is entitled to is determined on a case-by-case basis and based on an assessment of the above as an overview. This is why it is best to seek legal advice about your case, your obligations and entitlements, as well as tailored advice regarding the best options to suit your individual needs and the needs of your family.
Contact us today and make an appointment with our property settlement lawyers to discuss your circumstances and needs. We offer a reduced fixed fee initial consultation, which can be conducted in person, by phone or by video conference.
We give you expert legal advice on the most appropriate and cost-effective course of action for you and your family. Contact us on (07) 3852 5490 to make an appointment for a fixed fee initial consultation today.
