Family Law - Property Issues

Now comes the time to divide whatever assets you have accumulated during the relationship. This can be achieved in several different ways!

You and your partner can sit down and talk it over, reach some agreement, and then, just do it. Providing there is no land or houses to transfer to each other, you don't even need Court orders.

You might agree to sell your home, and then divide up the sale proceeds after all the bills are paid, and then divide the furniture and any other assets. There is nothing wrong with this approach, lots of people, do just that.

But, it does involve a deal of trust between you and your partner. If you and your partner can achieve this outcome, you deserve to be commended. It is a sensible approach. It will save you money, and unnecessary stress.

WHAT IF THERE IS REAL PROPERTY OR OTHER ASSETS TO BE TRANSFERRED?

Well, you can still do it by reaching agreement with your partner. This is the most sensible way. However, you will need to have Family Law Court approved Consent Orders, or a binding Financial Agreement.

Without either one of these agreements, the transfer of real property, such as land or your home, will involve paying the State Government a tax known as stamp duty. You will need either one of these agreements to get an exemption from paying stamp duty. Also, without one of these agreements, you won't be able to transfer superannuation entitlements.

This is the time when you should get a family lawyer or solicitor do the work for you. You don't want to get it wrong! There are many documents to be completed and organisations contacted. The solicitor or lawyer should ensure what you both agree on, is achieved.

Also, to be approved, either Family Law Consent Orders, or binding Financial Agreements will need the certification of a family lawyer or solicitor, that you each have received the appropriate legal advice.

You both can't get the certificate from the same lawyer, or even a different lawyer in the same Firm. The certificate for each of you must come from different lawyers from different Firms.

You both might agree, that a solicitor or lawyer you both trust will do all the necessary paperwork, and that the other person will just attend on an independent solicitor to get the necessary certification, to have either one of these agreements approved.

WHAT IF WE CAN'T REACH AGREEMENT?

If you haven't already, you should get legal advice from the family law solicitor or lawyer as to what the outcomes should be. You should also let the Family Law professional do the negotiation for you. Sometimes, because of your emotional involvement, you really can't make the right decisions. You need to be guided by the professional advice.

Hopefully, your partner will also have a family lawyer or solicitor working for them. It makes the negotiation so much easier. If this is the case, more often than not, provided you are both willing to compromise, an agreement can still be reached without the need to start Court proceedings.

If you do reach an agreement, you will still need to have it approved by the Family Law Court. There will still be a need for the proper documents to be prepared and the right people organised to finalise it.

WHAT IF WE STILL CAN'T REACH AGREEMENT?

Hopefully, that won't be the case, but, if you can't, then there is no option than to file an Application in a Family Law Court to start a case for family law property settlement. Sometimes, this is the only way to get your partner to seriously consider reaching an agreement.

Even after a case is started in the Court, it can still be settled by an agreement between you, without the Court having to make that decision. However it is important before you take this step that you are aware of the kind of things a Family Law Court has to consider in making any orders for division of marital property. 

Click to learn the factors a Family Law Court must consider before altering property interests.

If you have gone to the above link, you will read that there are still other factors the Court has to consider before making any orders for a division of marital property.

Click to discover these other factors a Family Law Court has to consider.

So, when it comes to property settlement, you have to ask yourself: what is fair? You have to remember that the Court is not concerned about the emotional factors involved in your relationship. 

It is only concerned with what property is available to be shared between you and your former partner, and its value, and the factors referred to,  in the links above.

SO, WHAT IS THE COURT'S STARTING POINT?

The starting point for the Court, is that each party gets half of what the assets are, superannuation included. The Judge, if you let it get that far, will then do a weighing exercise, to see if there is any reason to give one of you more than the other, based on the factors above.

There are many factors, such as how long the marriage was for, if there are children, and who is to care for them, whether any assets have been brought in recently. There are so many variables, and it is not black and white.

More often than not, the Court will determine who gets what based on percentages, that is, one might get 60%, and the other 40% of the nett assets.

So if you are shaping up to go to Court, you need to work out what 1% of the nett marital assets are, because if you are fighting over 5% for example, it may not be that much, and you could easily spend it on legal fees and costs.

The other thing to keep in mind, is that unless the household furniture is antiques, for the purposes of the Court, it probably has little value. The way to value the furniture is by asking yourself what you would get if you had a garage sale, because that is about the value a Court will put on such assets.

So, the best advice is get legal advice early. It should help you predict the result, and help you decide the best way of reaching agreement with your partner in regard to issues concerning property.

If you need help getting the right orders made by consent, or despite your best attempts, you cannot resolve the issues, and you need family law property advice,  and representation:

Contact:

Phone 02-4332 1055    Fax 02-4333 5144