PROPERTY SETTLEMENT AND DISPUTE
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Property settlement and parenting are the two most complex aspects of relationship breakdown. Property settlement is complex because it requires separating couples to establish a property pool of all of their assets and debts and then divide them in a way that it is equitable. This can be a time-consuming, expensive and emotional process.
The Australian Family Law system is governed by the Family Law Act 1975 (Cth). The Act deals with property settlement for both married couples and de facto couples. The process is slightly different in Western Australia, so if your matter is being heard in that State, you may require additional assistance.
You can apply for property settlement from the date of separation. However, time limits apply. If you are:
Married: You have 12 months from the date your divorce is finalised to complete your property settlement
De facto: You have 2 years from the date of separation to complete your property settlement.
If you are unable to comply with these time limits, you may be able to seek leave of the court to have your matter heard. If you have exceeded your time limit, contact our team for expert advice.
Division of property
Property division requires you are your ex-partner to create a property pool. The property pool is made up of all of your assets and all of your liabilities (debts).
An asset contains economic value or benefit. Assets can include:
- Bank accounts
- Real estate such as the family home and investment properties
- Artwork such as paintings
- Family trust
- Family business
- Any other assets
Liabilities are anything that runs at a loss. Liabilities can include:
- Personal loans
- Credit cards
- Outstanding debts of the relationship, for example, hire purchase agreements, orthodontic work, payment plans, unpaid utility bills, etc.
- Outstanding taxes
- Debts of the family business
- Any other debts
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List All Assets and Liabilities
Work out what assets and liabilities (debts) you have. It is recommended that you seek independent financial advice, especially if you have complex finances such as family trusts, family business, etc. You may also need to get a valuation on your assets such as shares, artwork, etc. You may also require the services of a forensic accountant if you are concerned about your finances. For example, if you believe your former partner is hiding assets.
Who contributed what?
Work out what each of you contributed to the relationship and the value of each of these contributions. This can include pre-marital/relationship assets, non-financial contributions such as care of children or homemaker, financial contributions such as personal income.
Informal or Formal Agreement
Reach agreement about the division of property. This can be completed informally or formally.
Informal: You and your former partner come to an agreement about property division without the need to attend court. You can come to an agreement yourself or use a dispute resolution service (mediator) to assist you. Informal agreements are not binding and are not enforceable. It is recommended that you create a written financial agreement to prevent either party from making an additional claim on any property in the future.
You can apply directly to the court for a court order, however, the court has the discretion to refer you to mediation if you have not made an attempt to resolve your dispute. The court considers:
- What you have, what you owe and the value
- Your direct financial contributions e.g. wage
- Your indirect financial contributions such as gifts or inheritance
- Your non-financial contributions such as homemaking
- Future needs such as age, health, financial resources, care of children and ability to earn
- The court looks to your individual circumstances when determining how your property will be divided. There is no set formula to work this out.
If you have attended mediation or drafted your own financial agreement, you can formalise it by applying to the court for consent orders.
A formal agreement is also known as a binding financial agreement. It is also enforceable and any breach will be taken seriously by the court.
Once you have reached an agreement or the court has divided the property, you will need to contact service provides such as your mortgagor, land titles office, utility providers, etc to change the account names for any asset or liability in joint names.
Which Family court will hear my matter?
It does not matter whether you are married or in a de facto relationship, both courts have the jurisdiction to hear your property settlement dispute.
Federal Circuit Court of Australia
The Federal Circuit Court hears the bulk of Family Law court proceedings including property settlement. It has the discretion to refer complex matters to the Family Court of Australia, especially when a hearing is likely to take more than four days.
Family Court of Australia
The Family Court of Australia is a specialised court that hears more complex matters. This may include complex questions of jurisdiction or law if the matter proceeds to hearing and is expected to last more than four days and disputes about whether the matter should be heard in Australia.
The above is general legal information and should not be considered legal advice. You should speak with one of our property settlement lawyers for legal advice tailored to your specific legal matter. The courts deal with matters on a case by case basis. It should also be noted that there may be court delays due to COVID-19.
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Frequently Asked Questions.
Successful mediation significantly reduces the cost of completing property settlement. However, if your matter cannot be mediated, there are additional costs that apply.
Court fees may include:
Application for consent orders = $170
Initiating application – interim and final parenting and property (the Family Court of Australia) = $715
Initiating application – interim and final parenting and property (the Federal Circuit Court of Australia) = $715
Daily hearing fee = $655
Some of these fees may be reduced in the event that you are able to prove you are suffering from financial hardship or you have a Government concession card.
Additional costs apply if you require the services of a financial planner or forensic accountant.
Not necessarily. Court proceedings are dealt with on a case by case basis, however, the court generally favours the financially weaker party or those with child care responsibilities. To reach 50/50 or close to it, it is best to work together to reach a satisfactory outcome for both parties.
Yes. Parties to a separation often underestimate the assets and liabilities they have. It isn’t until they work through their finances with an expert that they realise the true value of their assets and liabilities. If you are unsure whether you should complete property settlement, talk to our team for a free initial consultation.
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