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property settlement

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

Kerry White

When two people separate after marriage or after living together, they need to agree about dividing their property.

At Armstrong Legal Canberra, have a team of highly experienced property settlement lawyers. They can help you work out how to your divide income, assets and debts.

Property settlement decisions can be complex and stressful, and short-term arrangements can have long-term consequences. Armstrong Legal Canberra can help you achieve the best possible long-term outcomes.

As experienced property settlement lawyers, we have found that property matters are often placed ahead of children. Whilst we are committed to successfully assisting in all areas of family law, we believe that children must come ahead of property, and that this is the way to achieve the best outcomes for all. Therefore, we encourage you to deal with matters concerning parenting and children either simultaneously or before property issues.

Financial matters to consider after a relationship breakdown

After a relationship breaks down, there are a number of financial matters to consider, including:

  • How to divide assets such as real estate, shares, cars, jewellery, savings, furniture and effects (property settlement),
  • Splitting of superannuation,
  • Whether one spouse will provide financial support for the other (spousal maintenance),
  • Arrangements for the financial support of the children (child support)

What are pre-action procedures?

Pre-action procedures include attempts by the parties to reach an agreement outside of court, before filing an application for property orders. You need to do this before filing an application with either the Family Court or the Federal Magistrates Court. Pre-action procedures includes participation in dispute resolution.

There are some cases, for example situations involving urgency, family violence, refusal to negotiate or fraud where the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

If no agreement is reached then an application for property orders must be put to the Court. An application must usually be made within 12 months of your divorce becoming final.

At Armstrong Legal Canberra we are committed to assisting you in the process of dispute resolution outside of court as well as the formalisation of agreements. We will also represent you in Court.

How to do a property settlement without going to court

Reaching a settlement out of court saves you and your family considerable time, stress and money.

There are two ways to formalise your agreement:

  • financial agreements
  • consent orders

Financial agreements

Similar to the well-known pre-nuptial agreements, Financial agreements are signed before, during or after a marriage. Under Section 90D of the Family Law Act, a financial agreement covers division of property, finances and debts after marriage breakdown, superannuation, spousal maintenance and other incidental issues.

For the agreement to be legally binding, both parties must have signed it and have received independent legal and financial advice before signing.

Consent orders

Consent orders are a written agreement that is formalised and approved by the Court and is thus legally binding. You don't have to go to court to file consent orders.

Consent orders can cover the transfer or sale of property, superannuation splitting and spousal maintenance.

Please note: consent orders about property matters can only be made where the couple has been married. They cannot be made for child support departure applications.

Consent orders are filed with the nearest Family Law Registry. There is no filing fee involved. The court must be satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable".

Property settlement in court

If no agreement can be reached out of court then an application for property orders must be submitted to either the Family Court of the Federal Magistrates Court. It must usually be made within 12 months of your divorce becoming final.

The decision is then made through a court hearing. Both parties will be expected to fully disclose their respective financial circumstances. A failure to properly disclosure a relevant matter is taken very seriously by the court.

What the Court considers in assessing property settlements

The Court will consider the following:

1. The net asset pool of both parties.
This comprises the total value of all the assets owned by either or both parties. It includes everything acquired before or during the marriage, as well as after separation. The Court will also consider other financial resources over which a party has influence, control or prospective entitlements.

Ascertaining the net asset pool can be very complicated. To accurately value assets, many factors are considered, such as issues relating to taxation, stamp duties, and the appreciation or depreciation of asset values.

2. Contributions from both parties

There are many different types of contributions to be considered, including:

  • initial contributions (assets attained before marriage)
  • financial contributions
  • non-financial contributions (as a homemaker or primary carer of children)
  • gifts, bonuses and inheritance

3. The future needs of both parties.

The Court takes into account a number of factors when deciding on the future needs of both parties, including:

  • Age and health
  • Capacity to earn money
  • The property and assets of each party
  • New relationships (and new financial circumstances)
  • Future parenting responsibilities (care and support)

4. The practical effect of the proposed property settlement

The Court will consider the practical effect of the proposed settlement, and whether it is "just and equitable" to both parties.

Valuing and splitting superannuation

Superannuation is dealt with separately to property orders as set out in part VIIIB of the Family Law Act.

There are two elements to splitting superannuation: These are:

  • How to value superannuation interests (accumulated and potential).
  • How to split payments

Even though superannuation comes under a separate part of the Family Law Act, it is still taken into account in the overall property settlement, and is subject to the same principles, such that:

  • All superannuation is taken into account, regardless of when it was acquired (before or during marriage or after separation)
  • It is not automatically subject to a 50/50 split.
  • The Court will decide based on what is "just and equitable",

It is important to note that splitting superannuation does not enable you to access it any earlier. It is still subject to superannuation laws and is accessible only after retirement age.

Three options for splitting superannuation

There are various ways to split superannuation:

  • By financial agreement
  • By consent orders
  • By court orders

Working out the value of your superannuation

To work out how much your superannuation is worth you need to contact your superannuation fund trustee. The trustee will require the following forms:

  • Form 6 Declaration (to show you are entitled to the information)
  • Superannuation Information Request Form
  • Superannuation Information Form

You can obtain these forms in a Superannuation Information Kit at your nearest family law registry, or from the publications section of the Family Law Courts website.

Calculating the value of superannuation is highly complex, and depends on many factors, including the type of fund. Some superannuation funds are still waiting approval from the Attorney-General's Department regarding the methods and factors used for valuing superannuation. Your case may be affected by this.

How we can help you

Finalising a property settlement can be complex and stressful, whether it is carried out through a financial agreement, consent orders or in a court hearing. We can help you formalise agreements whether or not you and your partner are in dispute.

Armstrong Legal Property Settlement Lawyers Canberra specialise in property settlements and superannuation splitting. We provide advice that is both personal and practical, because it is tailored to your needs. We will inform you of your rights and obligations in a way that you can understand. We will keep you in the picture at all times, so you can make informed decisions about the conduct of your case.

where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Canberra: (02) 6288 1100
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448

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