Family and Defacto Relationship Law
Wills & Estates
A property settlement concerns the division of assets, liabilities and financial resources between a separated couple (married or de facto – including same sex couples) to legally finalise their financial affairs. Sometimes the parties can amicably agree about what each of them will keep. Even then, it is still wise to undertake steps to formalise the agreement under the Family Law Act 1975. This will ensure that, save for rare exceptions, the agreement is binding on the parties and will allow each party to move on with their life knowing that they will retain everything they received in the settlement i.e. without fear that their spouse/former partner might come back for “a second bite of the cherry” later on. Another advantage of a formal settlement is that some stamp duty exemptions usually apply to the transfer of certain assets such as real estate. This can potentially save a party many thousands of dollars.
In property disputes where the parties cannot negotiate an agreement, court proceedings will usually be necessary to resolve the dispute. However, it is not uncommon for settlements to be reached during litigation, which can then be the subject of consent orders made by the court. This brings the proceedings to an early end, thereby avoiding the need for a final contested hearing at considerable expense.
A person may seek a property settlement order once he or she separates from their spouse or former de facto partner. There is no requirement for married couples to be divorced before settling their financial affairs. However, the following time limits are very important:
It is generally much easier to resolve a property settlement dispute reasonably soon after separation, while the parties’ financial affairs are clearer. The longer the settlement is left undone, the more complicated it will become due to the disposal and acquisition of assets after separation, post-separation contributions, and the possibility of changed personal circumstances for either of the parties. Working out what you are entitled to can be a complicated exercise. This is why it is important to obtain early legal advice, so that you understand what your entitlements are likely to be. Cogill Woods Legal Services can provide you with this critical early advice and then assist you to navigate through the unfamiliar process.
When attempting to negotiate a property settlement, the same steps that a court would take in a litigated case (see below) are generally applied to negotiations. In a nutshell, the process used to determine the just and equitable division of a property pool includes the following steps in every case:
The division of assets and liabilities following separation can be formalised through Consent Orders or a Financial Agreement (where the parties have reached a negotiated settlement), or through court proceedings (in the absence of an agreement). Most family law property settlements are finalised without going to court. Court litigation should a last resort. Litigation is usually a time-consuming, stressful, expensive and protracted process.
At Cogill Woods Legal Services, we encourage our clients to look for family dispute resolutions outside the court system. Our dependable and knowledgeable family law solicitor is skilled in various forms of alternative dispute resolution and can help set you on the right path to achieve a good outcome. Call us now for an appointment with Lindsay Woods to discuss your entitlements, or submit your enquiry online here.