Divorce or separation can be a challenging time for anyone, especially when it comes to dividing property and finances. As one of the most significant issues to consider during the legal process, property settlement after divorce or separation can cause a great deal of stress and uncertainty. However, understanding the ins and outs of divorce property settlements can help you achieve the best possible outcome for yourself and your family.
In this article, we cover some handy things to know about property settlement after divorce including the legal framework, and the factors that influence property division, and we also look at an in-depth example. Our aim is to provide you with the information and resources you need to navigate this complex area of family law with confidence.
At Daykin Family Law, we believe that a comprehensive understanding of divorce property settlements is essential in achieving a fair and just outcome for all parties involved. If you’re in the Brisbane area, contact us today to speak to our property settlement lawyers.
How Does Property Settlement Work?
Property settlement in the context of a relationship breakdown can be a complex and emotionally charged process. It can involve the division of assets, financial resources, superannuation, and debts between two parties following the end of their relationship.
If you separated from your de facto partner after 1 March 2009, you may have the right to apply for a property settlement and/or maintenance under the Family Law Act.
How To Reach A Property Settlement Agreement
Negotiating a property settlement can be stressful and complicated. Hence, you might consider engaging a lawyer to assist in negotiations with your former partner. Even if you choose not to use a lawyer for the negotiation process, it’s crucial to seek legal advice before signing any agreement. Importantly, this advice should come from a lawyer who hasn’t previously advised your ex-partner.
Ideally, both parties should aim to reach an agreement about the division of property. This agreement can then be formalised into a court order, known as a consent order, which must be adhered to. Another option for a legally enforceable and binding agreement is to enter into a Binding Financial Agreement.
If an agreement cannot be reached, you have the option to apply to the court for property orders, which will dictate how the property should be divided.
Before applying to the court, certain pre-action procedures must be undertaken. Family dispute resolution services are available to help you reach an agreement. Family Relationship Centres might also offer assistance, particularly in cases where children are involved, though they are unable to provide legal advice. We often refer clients to private mediators, and work with a number of highly respected mediators in our field.
For any financial difficulties arising during this process, a financial planner or a financial counsellor can offer guidance. Don’t hesitate to seek professional advice to ensure your rights and interests are well protected.
Can A Property Settlement Agreement Be Changed?
Once lodged with the court, property settlement agreements via Consent Orders can be altered in only defined ways, unless both parties agree to the changes. Please note that even if you both consent, the court will not enact an order unless deemed ‘just and equitable’, essentially meaning appropriate for both parties.
For advice on varying or amending Consent Orders when there is no agreement to do so, contact us to discuss whether you may have grounds and any options.
How To Calculate Property Settlement
The Family Law Act essentially prescribes a four-step procedure to calculate property settlement in divorce, after it is established that it would be just and equitable to have a property settlement. Let’s break down these steps.
Step 1: Identification and valuation
The first step involves identifying and valuing all the property from the relationship or marriage, which also includes debts. It’s important to remember that this includes not just property and assets acquired during the relationship, but also those obtained before or after the marriage (or relationship).
Step 2: Consideration of contributions
The second step is to consider what each person has contributed to the relationship. These contributions could take various forms:
- Earnings from employment or businesses
- Savings accumulated during the relationship
- Gifts and inheritances received
- Property owned before the relationship began
- Improvements made to any property
- Contributions as a homemaker and parent
All these contributions, among others, can be taken into account to ascertain both parties’ entitlements.
Step 3: Future needs factors
The third step involves considering other factors outlined in the law, such as:
- Each person’s future earning capacity
- Age and health of each person
- Care and financial support for children
- Responsibility for looking after other people
- The length of the relationship
It’s important to note that the law does not consider who left the relationship when deciding what a fair division of property is. It aims to ensure the division is just and equitable, given the totality of the circumstances. A party’s conduct rarely has relevance in property settlement matters, but this can occur in certain circumstances.
Step 4: Court’s decision
Finally, the court will decide the exact division of the property. The court’s main concern is essentially ensuring that the division of property is just and equitable in all circumstances. This means that the court will look at all the information presented, apply the law, and make a decision that it considers appropriate.
Remember, while these steps provide a general framework, the exact process can vary depending on the specific details of each case. It’s highly recommended to seek expert legal advice to ensure your rights and interests are properly represented and protected in a property settlement.
Divorce property settlement example
Consider a divorce scenario involving Alex and Jamie where they have attended a mediation and reached an agreement on how to divide their property.
We’ll simplify the 4-step property settlement process to help illustrate how they came to their agreement and what the outcome was.
Step 1: Asset identification
Alex and Jamie’s financial picture is as follows:
- Savings: AUD $50,000
- Shared home: AUD $1,000,000
- Alex’s car: AUD $20,000
- Other assets: AUD $10,000
- Total: AUD $1,080,000
- Outstanding mortgage: AUD $150,000
- Total: AUD $150,000
- Alex: AUD $80,000
- Jamie: AUD $70,000
- Total: AUD $150,000
Given these figures, the net value of the couple’s combined assets is calculated as follows:
Assets – Liabilities + Superannuation = Net Asset Pool
$1,080,000 – $150,000 + $150,000 = $1,080,000
Alex and Jamie have total net assets amounting to $1,080,000. We call this “the property pool” or “the matrimonial property pool” for example.
Step 2: Evaluate contributions
Next, the contributions each party has made to the relationship, both financial and non-financial, need to be evaluated.
Neither Alex nor Jamie owned any property prior to marriage. While their superannuation holdings are different, their earnings have been relatively similar. Therefore, their financial contributions may be considered around equal. However, Jamie, who has taken on the role of primary caregiver for their two children, has contributed more in the sphere of homemaker and parenting. Recognising this, they agree that Jamie should receive an additional 2.5% in the final division on the contributions step.
Step 3: Assess future needs
With two children who still need care, an adjustment in favour of the primary carer is warranted.
While Alex will be involved in the children’s lives, the parties agree that Jamie, as the primary carer, will receive an additional adjustment of 2.5%.
Step 4: Justice and equity
The parties agree to consent orders that have the effect of both of them retaining super, selling the home and both Jamie and Alex receiving a sum of money (in addition to the other items they each own). See more on this below.
The proposed settlement is arguably just and equitable, given they will each retain super of fairly similar amounts and cash to move forward.
After taking into account the entire process, Alex is allocated 45% of the net assets, and Jamie is allocated 55%. This was achieved by agreement.
Jamie and Alex have agreed that there will be no superannuation splitting. They will each retain their respective superannuation entitlements as part of property settlement.
They expect to receive approximately $820,000 once the house is sold and all sale-related costs (including marketing costs) are paid. When you take out the sale costs, the total net pool comes down to $1,050,000 in total.
Therefore, the effect of the settlement is that Jamie will receive $577,500 (55% of $1,050,000), and Alex will receive AUD $472,500 (45% of $1,050,000).
It is agreed that Jamie will keep the cash savings of $50,000, other assets of $10,000 and her super of $70,000. To achieve a property settlement split of 60% overall on these figures, Jamie needs to receive the sum of $447,500 from the house sale. Her overall property settlement entitlement is then as follows:
It is then agreed that Alex will keep his car worth $20,000 and his super of $80,000. Alex will receive the rest of the net sale proceeds, totalling $372,500. His overall property settlement entitlement is then as follows:
The above is an example of how the property settlement process can be stepped out, showing you a global approach to dividing property after the breakdown of a marriage. The above does not constitute legal advice. Every situation and circumstances are different, and entitlements can vary. Expert advice is needed to ascertain what is best for you, and how best to achieve your goals.
Daykin Family Law can help you with your property settlement
Here at Daykin Family Law, we aim to guide you through property settlement and divorce, providing expert legal advice tailored to your specific situation. Remember, navigating this process effectively is key to securing your financial future post-divorce. Contact us today for professional assistance in achieving the most beneficial outcome for you.