Am I Entitled to a Property Settlement?
The Family Law Act 1975 Commonwealth allows for the division of property between parties of a marriage or a de facto relationship, including same-sex marriages or relationships. In limited circumstances, State or Territory laws may apply instead.
Marriages; Am I Entitled to a Property Settlement?
If you are married, you are entitled to a property settlement between you and your spouse if it is just and equitable. We discuss entitlements below. Time limits apply to a property settlement if you have divorced.
De Facto; Am I Entitled to a Property Settlement?
If you have been in a de facto relationship for two or more years or you made a substantial contribution or you have children together, you are entitled to a property settlement if it is just and equitable. Time limits apply for a de facto property settlement if you have separated and there are geographical requirements.
How Do I Complete a Property Settlement?
There are four primary ways a property settlement can be completed. A particular way of completing a property settlement may be more advantageous depending on the circumstances. Our experienced family lawyers can provide you with strategic property settlement legal advice for your circumstances.
1. Informal Property Settlement
An informal property settlement is where the parties agree to divide the property between them without going through a process that provides many formal legal protections.
Some advantages are that informal property settlements are quick, typically low cost and they usually do not involve lawyers.
There are many disadvantages including that a party may later commence a formal property settlement seeking a different outcome, you may not understand what is a fair property settlement or your legal rights including to maintenance and what constitutes property or a financial resource, the settlement process may not include all the financial resources and property, you may not be able to divide the superannuation, you do not formally sever your legal ties leaving each other open to potential liability from legal claims against the other party, and you may be open to family provision claims made if a party dies including many years into the future.
As there are low-cost property settlement options available, our family lawyers recommend a property settlement that allows each party to sever legal ties to the maximum extent the law allows.
Read about the other property settlement options below.
2. Binding Financial Agreement
A binding financial agreement is a legally binding agreement between parties which can deal with financial resources, income, assets, liabilities, superannuation, and maintenance. Each party must have an independent lawyer who provides legal advice to their client and provides a certificate of independent legal advice. Binding financial agreements must follow statute law and common law to be binding.
The advantages of binding financial agreements are that they are a private agreement between the parties, they do not require registration, they keep the parties in control of the property settlement, each party receives the benefit of independent legal advice, the parties should follow a sound property settlement process which assures each party the process has been fair, it can be an efficient process which is relatively low cost and the agreements can be expanded to include a child support agreement.
The disadvantage of binding financial agreements is that they can only deal with property and not parenting arrangements, the fairness of the agreement is only as good as the legal advice received and each party's willingness to negotiate, settlement negotiations can take a long time depending on the parties or negotiations can break-down, binding financial agreements can be found to be non-binding if statute law and common law rules are not followed and under various circumstances.
3. Application for Consent Orders
An application for consent orders is a joint application made by both parties to the Family Court of Australia. In the vast majority of applications, the application is determined administratively without court attendance. Court orders and issued resolving the property settlement between the parties.
The advantages of an application for consent orders is that the application can also include parenting arrangements if this is appropriate, the application is scrutinised by the Family Court and as court orders are issued the outcome provides a great deal of certainty to the parties, the parties follow a property settlement process aimed at fairness and the Family Court will only make orders if in the Court's view it is just and equitable to do so.
The disadvantage of an application for consent orders is that there is a court process to follow, the application is long, many people find the application to be confusing and difficult, the property settlement calculations required can be difficult and confusing, a party without a family lawyer may not understand their legal rights, it can be very challenging for someone not trained in family law to understand the terminology and the references to the Family Law Act 1975 and the significance of any references, court orders should be drafted reflecting the outcomes the parties seek and this can be challenging for anyone without formal legal training.
4. Property Settlement Through Court Proceedings
A property settlement can be achieved by bringing proceedings in a family law court. The parties must have attempted to negotiate and resolve the conflict first unless a special circumstance applies. Court proceedings will resolve disputes where parties cannot agree between themselves.
The advantages of court proceedings are that courts can deal with both property and parenting matters, courts have rules in place to ensure each party receives a fair trial, there are procedural rules and evidentiary rules which the parties must follow, matters dealt with through the court are usually thoroughly considered, the process can help resolve minor issues and help the parties focus on the important issues, the parties continue to negotiate throughout proceedings which can bring settlement and end the proceedings at any time, a judicial officer will case manage the proceedings and keep things moving forward, where the parties cannot agree on matters they can go to a final trial and have their day in court and have the matter determined by a judge which will give the parties the full opportunity of putting their proper case forward and receiving certainty of the outcome.
The disadvantage of court proceedings is that they are process orientated and require many forms and steps to get to a final trial, they are costly, they can take years to reach a settlement, if a party is unhappy with an outcome they can appeal to a higher court and the cost, time and complexity will increase, the judge will only consider the case you bring and it is up to each party to make their case, detailed personal and private information will be filed with the court, often the court is a place where detailed allegations are made, it can lead to a court litigation mindset in the future rather than dispute resolution and it may cause difficulties in future relations for years to come which can be difficult if children are involved.
Getting Your Property Settlement Right
Separation is an important life event which comes with many changes. A property settlement can be a time when emotions are running high and when clear thinking and level headed family lawyers like us can help you get the best outcome and avoid unnecessary stress and cost.
It is common when people separate for them to feel vulnerable, fearful, hurt, betrayed and lost. It is easy to blame the other person for these feelings, especially where there is an event such as an affair, abuse, family violence, disputes about children, financial constraints, or unfair contributions.
It is easy to fall into despair and get stuck in the moment.
Our family law services will help you understand your rights, give you sound strategic choices for your circumstances and help resolve the important issues to resolve the dispute. Call us today
More Property Settlement Options and Information
There are various important options and matters to consider in a property settlement. Choosing the best options for your circumstances can save you time, money and stress. Find links to more information about your options below, however, keep in mind that there is no substitute for the seasoned family law legal advice and service from family lawyers like us.
A property settlement can be achieved through the court where parties are unable to resolve their issues.
Property settlements can be achieved through alternative dispute resolution, including family law mediation.
Spousal maintenance or de facto maintenance allows a party to receive financial support from the other party after separation.
De Facto Family Law Property Settlement Legal Advice and Service.