The same laws about property apply whether or not you were married or in a same sex relationship. You can start negotiations about property as soon as the relationship has broken down.

In a same sex relationship, you must commence property or maintenance proceedings within two years of your separation.

At Byron Bay Family Law and Mediation Services, we have wide experience in matters related to divorce property settlement. We take the time out to understand your concerns and offer the best possible solutions based on your individual situation. Our property settlement lawyers have an unrivalled reputation and can help you make an informed decision. We understand that separation is a stressful phase and assure you that we will be there for you when you need us. Reaching a mutually acceptable financial agreement in divorce can be daunting. With our bespoke service, we will approach your case to deliver a favorable financial outcome. We are driven by the zeal to ensure a fair settlement and you can count on us even for the most complex cases.

Divorce Settlement in Australia

At Byron Bay Family Law and Mediation Services, we have wide experience in matters related to divorce property settlement. We understand that even if your finances are separate, there is the need for a formal financial settlement. Our experienced lawyers possess the expertise and understanding to enable you to handle the financial aspects of divorce as successfully as possible. We will outline ways to reach a fair settlement so that you do not face any legal disagreements in future. Approachable and experienced, our lawyers will help you get the results you want.

Reaching Financial Agreement in Divorce

After you have taken the decision to divorce, sorting out the financial aspects can be a complex task. There is much to consider but with the backing of our expert property settlement lawyers, you can be sure that you will be supported at every step. We take the time out to understand your concerns and offer the best possible solutions based on your individual situation. Our property settlement lawyers have an unrivalled reputation and can help you make an informed decision. We understand that separation is a stressful phase and assure you that we will be there for you when you need us. Reaching a mutually acceptable financial agreement in divorce can be daunting. With our bespoke service and clear legal advice, we will approach your case to deliver a favorable financial outcome. We are driven by the zeal to ensure a fair settlement and you can count on us even for the most complex cases. We will ensure that your interests are protected and the divorce proceedings are as amicable as can be.

If you have any queries about family law property settlement, do not hesitate to book a consultation. We are here to answer any questions that you may have and will be happy to guide you through the process of a divorce property settlement.

Property Settlement Lawyers

If you have any queries about family law property settlement, do not hesitate to book a consultation. We will be happy to assist you.

After ten years of marriage and two children John and Kate decided to separate. John had provided the funds to buy their first house and had spent an enormous amount of time improving the family home. He faced a dilemma, he didn’t want to leave the family home but if he stayed he was afraid he and Kate would end up having a major fight. John was afraid fighting would scare the children or that Kate might decide he shouldn’t see the children anymore .

One of the most important, and perhaps the most difficult, issues facing couples who separate is the question of ‘who gets what?’ The Family Law Act provides for property settlements between couples who are, or have been, married and also couples in a de facto relationship (including same sex couples). Most property settlements are dealt with by the Federal Circuit Court or the Family Court.

[Case: John and Kate’s Separation]

Strict time limits apply to commencing property settlement proceedings in a Court. You must apply for a Court Order within two years from the date your de facto relationship ended or within one year from when your divorce order became final. It is important that you seek proper legal advice as soon as possible (including while contemplating separation).

The lawyers at Byron Bay Family Law & Mediation Specialists Melbourne have extensive experience negotiating property settlements for couples who have a substantial asset pool, such as a major property/share portfolio or a family business. We understand both the emotional and the commercial implications of splitting assets. We are committed to ensuring a fair settlement is achieved as quickly as possible, we aim to reduce the time taken and therefore the cost to you.

Byron Bay Family Law is a law firm based in Melbourne. Please contact us on +61 3 9804 7991 to speak with a family lawyer from our law firm today. You can also send through your enquiry online now and we will contact you shortly.

Oftentimes, particularly in circumstances where parties to a separation are amicable and consider that they “get along well”, spouses divide their assets according to a personal agreement – that is, an agreement negotiated personally between the parties without the use of lawyers or the Australian courts.

Such an arrangement is not legally binging, and until an agreement is documented in one of the approved manners, the agreement is considered to be an informal agreement.

One of the most significant consequences of not formalizing your property settlement is the possibility that your former spouse is able to make an application for a property settlement in the future – one, two or even several years later. Being required to undertake a settlement years after your separation can have detrimental impacts on your financial and mental wellbeing and makes it difficult to plan your personal affairs. This is particularly so when as far as you knew, the matter was dealt with and is in the past.

It is important, and a principal consideration of the Australian courts, that parties finalize the financial aspects of their relationship so that they can get on with their lives.

How Do I Formalise A Property Settlement?

Australian family law affords former spouses (or parties to a de facto relationship) two ways in which they can formally finalize a property settlement. These are:

• 1.Making an application to the court for consent orders; or
• 2.Entering into a binding financial agreement (‘BFA’) (also colloquially known as a ‘pre-nap’).

To reiterate, an agreement is not legally binding unless and until it is is documented in one of these manners.

1. Consent Orders

Parties to a separation that have reached agreement about their property settlement are able to apply to the Family Court of Australia for orders to formalize the agreement so that it is legally binding. This application documents and details:

• The agreement reached by the parties; and
• Its practical application.

When considering an application for consent orders in respect of a property settlement, the Family Court must be satisfied that the orders proposed are just and equitable.

Although the parties are not required to obtain legal advice in relation to an application for orders, it is highly advisable that you do so, as the documents required are technical in nature, and the consequences of an agreement not being documented correctly can be costly and time consuming.

2. Binding Financial Agreements

Parties to a marriage or de facto relationship can enter into a binding legal agreement (essentially a contract) that details the financial arrangements should their marriage or de facto relationship break down.

A binding financial agreement can be entered into:

• Before marriage
• During marriage
• After divorce

A binding financial agreement is capable of covering:

• Property matters
• Financial support of a spouse (i.e. spousal maintenance), or the termination there of that is, to prevent a former spouse making an application for maintenance in the future should their circumstance change. This protection is not afforded solely by consent orders.

Unlike an application for consent orders, in order for a financial agreement to be binding, both parties must seek independent legal advice as to the effect of the agreement on the rights of either party and the advantages and disadvantages thereof. Additionally, and as distinct from an application for consent orders, a binding financial agreement is not required to be deemed as just and equitable by the Australian courts.

Other Important Considerations

You are not required to be divorced to formalize your property arrangements – in Australia, divorce is a largely administrative process and is distinct from property settlement matters.

You should also consider that when you are divorced, you have twelve months from the date that the divorce is granted to bring an application for a property settlement to the court. After this time, ‘leave’ (i.e. permission) from the courts to apply for property orders may not be granted, or may nevertheless be costly and time consuming to pursue. De facto couples have two years from the date of separation in which to apply to the court for property orders.

Where To From Here?

Our accredited family law specialists are available to assist in all matters pertaining to your property settlement and can advise as to the method that is most suited to your particular circumstances. If you would like to speak to one of our family law specialists about any of your family law matters, please contact us on 1300 635 529 or email [email protected] to arrange a free telephone consultation.

There are a number of issues to be considered for a property settlement, some of which you may not even have thought are relevant, such as your and your former partner’s superannuation entitlements.

Further issues to be considered may include:

– Assets and liabilities of each party

– How much did each party contribute financially

– Domestic duties performed by each party

–  Who looked after the children

– Superannuation

– Any gifts received and

– Inheritances.

When a couple divorces (or de facto or same sex couples terminate their relationship), one of the major decisions to make is “who gets what”.  A pre-nuptial agreement may help make this division easier.  If a couple can decide between them and come up with their own agreement, long court battles can be avoided.  If not, the courts have their own way of dealing with property division.  In Australia, the courts place all property into one pool and then divide it “equitably” or fairly.  Everything is included and considered joint property by the courts.

The law governing property division(link to “Property Division FAQs”) between spouses or de facto couples is Part VIII of the Family Law Act, 1975 (FLA).  The law provides guidelines for the courts to use when dividing property.  There are a number of factors the court will consider and which couples should know about.  Below is a list of some considerations.

Think about the children

Before even entering into the fight, divorcing couples should consider their children when dividing up property.   It might be more “fair” to sell the marital home, but parents (if they can afford to) should also consider the impact of this change on the children.   If parents are going to share parenting time, they should think about what children will need in each home and also divide accordingly.  If one parent is moving to a smaller home, he or she might not have space for so much furniture, so why demand it just for the sake of being fair.  Both parents should consider the physical and emotional needs of their children, not just what they themselves believe they are entitled to receive. 

Depreciation of ownership rights

Over time, the contribution of the person who brought the property decreases and the contribution of the other partner increases.  For example, one person may have purchased the house prior to the marriage, but the other partner paid most of the mortgage on it for the next 20 years.  The investment in the house may be equal by the time the couple splits up and the court will consider this relevant in making an equitable distribution.

The value of the property when it was acquired.

The courts will consider the value of the property when it was brought into the marriage as well as the length of the marriage.  There is a difference between a house that was worth $100,000 and one worth $2 million.  If a couple was married for only a short period and during that time the marital home tripled in value, how much is the spouse who purchased it prior to the marriage entitled to?  How much is the other spouse, who paid next to nothing in terms of mortgage and maintenance, entitled to?

Non-financial contribution

The courts in Australia today recognize that in many marriages today, one partner may earn a high salary while the other contributes to the marriage in a non-financial capacity.  This role has a value that also needs to be measured for property purposes.  Many couples decide that one partner will stay home to care for the house and children.  This enables the other partner to obtain an education, gain professional experience and earn a higher wage.  The stay-at-home parent is entitled to financial compensation for his or her job at home and for allowing the other spouse professional development.

The parent who stays at home makes other large non-financial contributions to the home.  By being at home, the family saves thousands of dollars on child care and possibly cleaners and cooks.  Finally, the at-home spouse may undertake do-it-yourself jobs, like painting, also worth a good deal of money to the family, but without any actual monetary compensation.  Imagine a spouse who repaints the inside of the house.  Not only has the family saved on the expense of paying an outside contractor but the value of the home has also increased.

Use and maintenance of the property

The court will consider not only the worth of the couple’s property but also how it is used.   In one family, for example, the father stays home to care for the children.  He is responsible for all household work – cooking, cleaning, gardening, paying bills.   The mother, in turn, works long hours to provide a good income and financial stability.  No doubt the mother “earned” her share of the house, but so did the father.  The court might ask who actually needs the home more.  In this case, the court may consider equitable distribution to mean that the father keeps the house and the mother receives other property.

Future needs

Section 75(2) of the FLA lays out the factors a court uses to determine the “future needs” of each spouse.  The court considers age, health, professional training and ability and property and financial resources, among other factors.  Based on this analysis, the court may decide that a particular spouse is entitled to more of the marital property, to compensate for that person’s weaker ability to earn a living.

Marital property is all assets and liabilities acquired during the course of the marriage.   Assets might include your home, cars, furniture, shares in a company, rental income and savings.   Liabilities can include any debt, such as mortgages or other loans and leases.

Generally, anything acquired before the marriage is not considered marital property.   However, the court might determine that certain types of property are marital.  The longer a couple is married, the more likely a court will consider property – even property acquired by one partner before the marriage – to be marital property.  For example, perhaps you purchased your home before getting married.  Fifteen years later your spouse, who had a higher income, contributed equally to the mortgage payments and the house renovations, may now be entitled to some share of the value of the house.

Inheritance – What Happens to Them In Divorce Property Settlement’s

An article written for accountants and financial advisors by Vanessa Mathews of Byron Bay Family Law & Mediation Specialists.

Your client has the good fortune to receive a ‘windfall’, such as an inheritance or a lotto Your client and their partner separate.

Will the windfall be included in the property settlement asset pool?

Your client will likely answer ‘No Way’!

From the court’s perspective, windfalls are not a special category of contributions and they must be:

1. Included in the asset pool.
2. Considered in the same manner as, and holistically with, all of the other contributions made during the relationship– financial, non-financial, homemaker and parenting.

The timing of the windfall will however be relevant as to how the windfall is ‘shared’:

• A windfall received early in the relationship is likely to be treated equally.
• A windfall received shortly before separation is less likely to be treated equally.
• A windfall received after separation is even less likely to be treated equally.

The short answer is that the windfall is unlikely to be retained in full by your client.

I’ll leave it you to break the bad news to them.

Next Steps Before a Divorce Property Settlement

You and/or your client may benefit from discussing the circumstances of the inheritance or other windfall and divorce property settlement before taking any action such as distributing or disposing of the asset in a manner that may adversely impact against your client.

Vanessa Mathews is family law specialists with the expertise and experience to advise you about your family law property settlement issues.

Please call Byron Bay Family Law & Mediation Specialists on 03 9804 7991 or email [email protected] to speak with Vanessa Mathews.

Resources

Byron Bay Family Law – Dividing the Property: http://mathewsfamilylaw.com.au/divorce/divorce-videos/dividing-the-property-in-victoria/

Family Court of Australia: http://www.familycourt.gov.au/wps/wcm/connect/fcoaweb/home

Federal Circuit Court of Australia: http://www.federalcircuitcourt.gov.au/wps/wcm/connect/fccweb/home

Property divisions are based on the contributions made by each party to the relationship.

In a short relationship, each party will tend to leave the relationship with what they brought to the relationship.

In a long relationship, the ongoing contributions made throughout the relationship are seen to decrease the significance any financial contributions made at the beginning of the relationship by an individual party. The continuing financial and non-financial contributions made by both parties to the relationship tend to erode the ability for any particular asset to continue being owned exclusively by one party or the other.

If an asset has been purchased post separation using assets of the marriage, then there is a strong basis for claiming that both parties have contributed to the asset.

However, in a situation where one spouse acquires property several years after separation from income generated post separation, then it would be difficult to substantiate a claim.

Where a business asset is sold after separation and the asset was built up during the course of the relationship then it can be possible to claim the proceeds as an asset of the relationship.

If a claim is brought to the Court for determination, it is important to remember that the Court looks at the financial position of the parties at the time of hearing. This can be several years after separation.

The Court will also consider other issues such as future needs, income earning capacity and maintenance concerns when determining a property settlement.