It is essential to get legal advice from experienced Property Settlement Lawyers before you discuss financial issues arising out of a separation with your spouse or partner.
Family Law can be complex and every case is different. Melbourne Family Lawyers can guide you and suggest possible solutions for your situation.
Some separating couples can find it very stressful to talk to each other about financial issues- for those people, we can conduct the negotiations on your behalf and achieve a fair property settlement without you needing to confront your spouse or partner directly.
Our property settlement lawyers have extensive experience in the following:
- Negotiations and Out of Court Property Settlements
- Review of complex financial structures and assessing pool of assets
- Valuation of businesses and companies
- Identification of Capital Gains Tax Issues
- Complex Property Settlements involving Businesses and Family Trusts
- Property Settlements relating to Doctors and Dentists
- Tax effective settlements
- Finding “hidden” assets in family law property settlements
- Superannuation splitting
- Applications for Sole Use and Occupation of Family Home
- Certification of New Zealand Relationship Property Agreements
Our Family Lawyers
Our lawyers have vast experience in Family Law. Whether your case involves a 50 million dollar business or a suburban house, a relocation with children to Preston or Paris, or a Divorce Application in Melbourne or Mumbai, rest assured that we know how to deal with it in the best possible way and obtain the best possible result for you.
Can You Have an Informal Property Settlement?
Whilst there is no law against making your informal property settlement without lawyers and outside the scope of the Family Law Act, it is not a wise move.
Unless a settlement is approved by a Court or a formal binding Financial Agreement is made according to the Family Law Act, an informal property settlement is not regarded as binding.
This means that one of the parties could renege on it and be entitled to apply to the Family Court for a greater share of the property in the future.
Catered Solutions of Our Property Settlement Lawyers
Melbourne Family Lawyers handle all aspects of problems related to Family Law Property Settlement holistically.
We know how to resolve your Family Law problem in the context of your entire circumstances paying particular attention to relationships, finances and taxation.
A financial case can cover such things as property settlement, maintenance, child support or financial enforcement.
Full and Frank Financial Disclosure
When engaged in a property-related case, it is essential to adhere to the legal requirement of ‘full and frank disclosure.’ This entails the obligation to transparently disclose all your assets, including property, superannuation, and financial resources, to the opposing party.
For comprehensive insights and guidance on this matter, we encourage you to reach out to one of our experienced property settlement lawyers today.
Mediation and Negotiation
The Family Law Rules require you to take certain steps before you commence legal proceedings in the Family Court (These steps are called Pre Action Procedures).
The Pre Action Procedures are intended to encourage parties to resolve matters through negotiation rather than having a Judge decide Court.
Unless your case is urgent or involves some exceptional factor, such as allegations of abuse or fraud, you must:
- Make a genuine effort to resolve the family law property settlement through mediation;
- Providing the other party with copies of relevant documents;
- Make a settlement offer;
- advise the other party of the orders you will seek from the Court.
Application for Consent Orders
If terms of settlement are reached, a family lawyer can prepare an Application for Consent Orders which may be lodged at the Family Court without the need for anyone to appear in Court.
Consent orders have the same legal force as a decision made by a Judge in a Courtroom.
Before making the consent orders the Court will need to be satisfied that the orders are properly drafted and that the terms are just and equitable.
The benefit of having orders made by consent is that you know exactly what the settlement will be as opposed to the uncertainty of having a judge decide the matter for you.
The long delays experienced in court proceedings coupled with the expense of court proceedings certainly make going to court the less preferred option.
What Does a Property Settlement Include?
“Property” covers such things as your home, other real estate, money in the bank or other financial institution, cars, boats, investments, business interests, household contents, and Superannuation.
At the end of a relationship, it is necessary to determine how to divide up your assets and financial resources.
A family law property settlement is the term used to describe who gets what after the end of a marriage.
The Family Law Act 1975 covers matters relating to property settlements for married couples and de-facto couples (including same-sex relationships).
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How Do You Determine What the Property Settlement Should Be?
When hearing a case about property settlement, the Family Law Court is first required to identify the existing legal and equitable interests of the parties in the property that is available for distribution between them. The Court must then determine whether it is just and equitable to make an order altering the parties’ interests in the property.
The court must then consider the contributions made by each party as referred to in section 75(2) of the Family Law Act. The factors which the Family Law Act specifies must be taken into account as follows:
- Assessing the current value of the property concerned and the extent of any liabilities
- Assessing the direct financial contributions by each party, for example, assets and savings owned at the commencement of the relationship.
- Considering the indirect financial contributions by each party, for example, gifts and inheritances from families.
- Considering the non-financial contributions to the marriage or de facto relationship, for example, caring for children, being the homemaker and maintaining or improving the property
Assess Future Needs
It is important to realize that the distribution of your assets and debts between you and your partner will also depend on your future needs. These circumstances may include factors such as age, health, financial resources, child care responsibilities, and income-earning capacity.
Just and Equitable
Finally, after considering all of the above, the final consideration is to apply the test of whether any proposed property settlement is fair and equitable in the circumstances.
Contrary to urban myths, there is no presumption that a family law property settlement should be divided 50/50, 60/40 or in any other arbitrary proportion. The Family Law Act sets out the factors which must be taken into account when a Judge has to consider how property is to be divided.
The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or a de facto relationship.
There is no universal formula to apply as a property settlement is based on discretionary criteria.
Beware of “advice” received from well-meaning friends or family as a result of their own experiences.
Each person’s situation is different and should be carefully assessed by property settlement solicitors qualified to give the right advice.