Property and family law: What to do when you’ve separated


DA Family Lawyers in Brisbane can help you navigate property settlement

If you and your partner have separated do you know how your property will be divided?

There are three ways a property division settlement can be settled. Either both parties can amicably agree to the division and can apply for consent orders, or: if you are unable to agree on the best way for the property to be divided you can apply for property settlement in the appropriate court. The Family Law Act can be exercised by the Family Court of Australia, the Federal Circuit Court of Australia or a local court. Which court is appropriate for you will depend on your matter. The third option is very different to the first two and will be discussed below.

When you and your former partner have agreed on how to divide the property

In this case if you are able to agree about how to divide the property a DA Family Lawyers solicitor can assist in the preparation of an application for consent orders and minutes of consent orders. This is a relatively inexpensive and simple procedure. Once the orders are made with the court, the agreement you and your former partner have reached is final and enforceable.

If you would like to know more about consent orders and how DA Family Lawyers can help you avoid going to court, contact us today.

When you and your former partner cannot agree on the division of property

If you are unable to come to an agreement with your former partner as to how property is divided, then DA Family Lawyers can provide you with advice as to what your next options are. It may be that you will need to file an application for property settlement in either the Federal Circuit Court or the Family Court of Australia.

DA Family Lawyers can help you navigate through your property settlement

While it is advisable to resolve a property settlement soon after separation, we appreciate that property settlement can sometimes be the last thing on your mind. However, it can be beneficial to you to at least seek advice and start considering the issues you and your former partner might face in resolving your property settlement.

The process for property settlement involves four steps:

1.Identify and value the assets and liabilities to the relationship of you and your former partner

This step involves valuing the assets, liabilities and the financial resources of you and your former partner. While this is often the easiest step, there are cases when specialists will be required to help value the items.

2. Consider the contributions each partner has made to the relationship.

This step involves considering what contributions were made to the relationship by the parties. These contributions can be financial (such as providing the primary income for your family) or non-financial (such as being the primary carer or homemaker). Contributions are considered over the period of the relationship. That is, the contributions made prior to the relationship, during the relationship and since your relationship with your former partner has ended.

Complexities in matters can arise depending on the length of your relationship and whether children are involved.

3. Consider the future needs of you and your former partner.

This step involves assessing the future needs of you and your former partner. The court will have to consider factors such as:

  • The income, property and financial resources of each of the parties and their capacity for employment;
  • The age and state of health of each of the parties; and
  • If you or your former partner’s ability to earn income has been affected by the relationship.

4. Make an order which is just and equitable.

After the first three steps have been assessed, the court will decide whether the proposed division of assets is fair to you and your former partner. If parties reach agreement outside of court and this is finalised by way of consent orders, the court will still need to assess whether the agreement that has been reached between you and your former partner is just and equitable for both parties.

DA Family Lawyers can assist you with a further option

Another option that you may have is thought to be more of a pre-emptive consent order. This is a way to settle property disputes, and indeed many other disputes, before they arise. Generally, this is known as a Financial Agreement. Financial agreements (or Pre-Nuptial Agreement) can be made prior to entering into a relationship (of a marital nature) and can help to prevent any drawn-out problems in the unfortunate event of separation. In addition, Binding Financial Agreements can be prepared during marriage and after separation.

There are many options open to you and if you would like to know more about property settlement and the choices you have, DA Family Lawyers can help you. Please contact us today.

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