Property settlement is a crucial aspect of divorce or separation in Australia, ensuring a fair and equitable distribution of assets between parties.
While the process is often collaborative and amicable, disputes can arise, causing delays and hindrances to achieving a resolution.
How to Force a Property Settlement in Australia
Knowing how to force a property settlement becomes vital for individuals seeking a just division of their joint property.
This article sheds light on the legal options available to those facing challenges during property settlement proceedings in Australia.
1. Understanding Property Settlement in Australia:
In Australia, property settlement is governed by the Family Law Act 1975. This legislation provides a framework for the fair distribution of assets accumulated during the relationship or marriage.
The court considers various factors, including the financial contributions of each party, non-financial contributions (such as homemaking and childcare), future needs, and the overall financial position of the parties involved.
Also read: A Helpful Guide to Co-Owning a House After Divorce Australia
2. Negotiation and Mediation:
Before resorting to legal action, it is advisable to attempt negotiation and mediation with your former partner.
Mediation is a mandatory step in the property settlement process, and it involves both parties meeting with a neutral third-party mediator to find common ground and reach an agreement.
Through open communication and willingness to compromise, parties may avoid the need for a lengthy and costly court battle.
Also read: Family Law Settlement Agreement
3. Applying for Consent Orders:
If you and your former partner manage to reach an agreement during mediation or negotiations, you can formalise the settlement by applying for Consent Orders.
This involves submitting a written agreement to the Family Court for approval. Consent Orders can cover property division, financial matters, and parenting arrangements if applicable.
The court will review the deal and, if satisfied that it’s fair and reasonable, will approve and seal the orders.
4. Initiating Court Proceedings:
You may initiate court proceedings if negotiation and mediation prove unsuccessful and you still want to force a property settlement.
The process involves filing an Initiating Application and a Financial Statement with the court. This signals your intention to pursue legal action to seek a resolution.
It’s essential to seek legal advice and representation during this stage to ensure your rights are protected.
5. Property Valuation:
As part of the court proceedings, the court may order a valuation of the joint assets to determine their current market value.
This may include properties, businesses, investments, and other significant assets.
The valuation will play a crucial role in the court’s decision-making process.
If a property is to be listed for sale, it might not be necessary to have the property listed for sale.
6. Forcing the sale of a property
During property settlement proceedings, you can request that court forces the sale of a property. Another option is to seek a sole occupancy order for the property, meaning that the court makes an order for you to stay in the property to the exclusion of your partner.
This can be a contentious issue, and the court will assess factors such as age, health, income, and financial resources before deciding.
What Happens If My Ex-Wife Does Not Accept Proposed Property Settlement
When an ex-wife (or any ex-partner) refuses to accept a proposed property settlement, it can lead to a complex and often stressful situation.
However, there are legal pathways available to ensure a fair resolution can still be reached. Here’s what you might consider if you find yourself in this predicament:
- Further Negotiation and Mediation: It’s usually beneficial to attempt further negotiation. Sometimes, a refusal can be due to specific terms rather than the entire agreement. Mediation can help identify these issues and find a middle ground.
- Issuing a Notice of Intention to Claim: This formally indicates your intention to seek a court order for property settlement. It can sometimes encourage the other party to reconsider their stance before the matter escalates to court.
- Application for Court Orders: If negotiations and mediation fail, you can apply to the Family Court for a property settlement order. This step involves presenting your case to the court, including the proposed settlement and evidence of your ex-partner’s refusal to agree. The court will then decide based on what it considers fair and equitable.
- Enforcement of Court Orders: If a court order is already in place and your ex-wife is not complying, you can seek enforcement of the order through the court. This might include orders for payment, property transfer, or asset sale.
- Seek Legal Advice: Throughout this process, it’s crucial to have legal representation. A family law solicitor can offer advice tailored to your situation, help negotiate on your behalf, and represent you in court if necessary.
Also read: My Ex Has a New De Facto – How Does This Affect Property Settlement
Helping Our Clients: How To Force a Property Settlement
Roland, seeked our help on how to force a property settlement with his ex-wife. He had recently divorced his wife and had issues with the property settlement process.
His ex-wife was causing significant delays, making it difficult for Roland to move forward with his life.
To assist him, we immediately reviewed the details of his case and devised a comprehensive strategy.
Firstly, we initiated communication with Roland’s ex-wife’s legal representation to express our client’s eagerness to resolve the matter amicably and expedite the settlement process.
However, when negotiations failed to yield the desired results, we promptly prepared and filed an Initiating Application with the court on Roland’s behalf.
We provided Roland with regular updates throughout the proceedings, ensuring he remained informed and supported during this challenging time.
To strengthen Roland’s case, we presented evidence to substantiate his financial and non-financial contributions to the marriage.
We also made an application to sale the property, as Roland was not living in the property but was having to maintain payments on it because he was on the mortgage.
As a result of our efforts, the court ruled in favour of Roland, ordering a fair and equitable property settlement.
How to Force a Property Settlement: Seek Legal Advice
How to force a property settlement? Forcing a property settlement in Australia should be seen as a last resort when all attempts at amicable resolution have been exhausted.
While court proceedings can be stressful and expensive, they may be necessary to achieve a fair and equitable distribution of assets.
It is crucial to seek legal advice and support throughout the process to ensure your rights are protected and to navigate the complexities of family law effectively.
Remember that every case is unique, and understanding your rights and legal options will be essential in pursuing a successful property settlement outcome.
Director of Melbourne Family Lawyers, Hayder manages the practice and oversees the running of all of the files in the practice. Hayder has an astute eye for case strategy and running particularly complex matters in the family law system.
