Following the breakdown of a relationship or marriage, it may be necessary to sever your financial relationship with your partner and to resolve property matters between you. We can help guide you through the complex property settlement process and assist to finalise the property relationship between you and your ex-partner to achieve a just and equitable outcome. To minimize the risk, cost and stress of litigation we recommend you contact us as soon as possible after your separation to finalise your property matters.
- Consent Orders
- Financial Agreements
- Property Settlement
Our family lawyers have helped countless people with financial and property matters and can help prepare documents and financial agreements to finalise property matters and to create certainty for the future, call 03 5941 1622 for more information.
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Frequently Asked Questions
I have recently separated. Do I need to go to Court?
There is no obligation for parties to go to Court to resolve property matters. The majority of matters are settled by consent without the need to go to Court. If you and your partner can reach an agreement on how to divide your assets you are encouraged to do so. It is recommended, however, that your property settlement is finalised and that you seek legal advice before signing any documents to ensure the agreement reflects your entitlements.
Do I need a Lawyer?
It is not necessary to obtain legal advice, however, if you decide not to do so the agreement reached with your ex-partner may not be binding and may be set aside exposing you to a further claim in the future. The agreement may also not reflect your entitlements.
Do I need my own Lawyer?
Where you and your partner have reached agreement in relation to a property settlement it is not always necessary for both parties to obtain independent legal advice. Documents representing the terms of a just and equitable property settlement may be prepared by one parties’ lawyer and forwarded to the other party to sign without the need to obtain independent legal advice. The documents may then be forwarded to the court for approval.
What is property and was it taken into account in a property settlement?
The term “property” has a very wide definition under Family Law ACT 1975 and includes a range of assets and liabilities including the family home, investment properties, business assets, shares, motor vehicles, cash savings, superannuation and all debts of the parties.
Assessing whether some types of property fall within the asset pool can be a complicated task, requiring an assessment of the ownership, structure and use of certain assets, such as family trusts or certain business structures. It is important that a full history of the property is obtained to determine whether they fall within the asset pool when determining a division of property following separation.
The value of property is calculated as at the date that the dispute is finalised by consent, or at the date that a final hearing is determined by a court. As such, it is important to understand the manner which you can use those assets, and your responsibilities to maintain those assets or make payment of debts following your separation. It is also beneficial to reach agreement in relation to a property settlement as soon as possible following separation.
Do I have to disclose my Financial Circumstances?
The answer is yes – each party to a family law dispute about property is required to provide full and frank disclosure of their financial circumcircles to the other party. The reason for this is quite simple: it provides a proper basis to assess and identify the assets that will be distributed between the parties and the basis upon which that division will be calculated.
However, there are circumstances where information is sought to be obtained that is not relevant to the dispute, and which a party is not obligated to disclose. It is important that all requests for disclosure are assessed before any information is provided, to ensure that the information is required to be disclosed and will assist in helping the parties resolve the dispute.
Spousal Maintenance: What is it and Am I entitled to it?
The Court has the power to order one party to a relationship to pay the other party an amount of money, either in a lump sum or as an ongoing weekly payment, in certain circumstances following separation. This can be an interim arrangement (pending a final order by a Judge dividing the parties’ property) or in limited cases can be a longer-term arrangement.
Before a spousal maintenance order can be made, the court must be satisfied that the person seeking the order has a genuine need for financial assistance, and further that the person who is being asked to pay has the financial capacity to make that payment.
Finalising a property settlement: The Options
Many clients sign an agreement with their partner following separation in relation to a property settlement. Unless the agreement complies with the provisions of the Family Law Act 1975 the agreement may be set aside exposing you to a further claim.
To protect yourself from further claims parties may:
- Sign a Financial Agreement that complies with the provisions of the Family Law Act 1975. Both parties are required to obtain independent legal advice for the agreement to be binding.
- Obtain court orders by consent (without the need to attend court).
It is important to ensure that any agreement reached between you and your partner is final and binding, as failure to do so can have disastrous consequences. For example, where land values rise rapidly due to rezoning of the property, it may be possible for the other party to seek a further apportionment of that property in circumstances where the agreement has not been formalised or the agreement signed by the parties does not comply with the requirements of the Family Law Act 1975.