An In-Depth Exploration of Property Settlements

‍When a relationship ends, dividing property, assets, and even debts can feel overwhelming. Whether you are recently separated or have been separated for a while and are just now addressing property matters, our team of experts offers you detailed advice regarding your legal entitlements so you can make an informed, commercial decision when negotiating the terms of your settlement. If you have already reached an agreement with your ex-partner, we can also help you formalise that agreement to ensure its terms are legally binding and fully severs the financial relationship between you and your ex-partner.

How do you determine my legal entitlements?

When providing you with advice regarding your legal entitlements, what we are saying is were the matter to be heard before a Court, this is the likely range of outcomes you would receive. Negotiating with these outcomes in mind is referred to as “negotiating in the shadow of the Court” and can help you determine a starting point as well as your bottom line and places where you might be willing to make concessions.

When considering how to divide property between litigants, the Court takes several factors into account to the extent they are relevant. These include:

• Financial contributions made by either party prior to, during and after the relationship, with particular emphasis on “windfalls” such as insurance payouts or inheritances;
• Non-financial contributions made by either party, such as improvements undertaken on a property;
• Contributions made by either party to the welfare of the family (referred to as “homemaker and parent” contributions);
• The effect of any family violence on either party’s ability to make the contributions above;
• The parties’ respective ages and states of mental and physical health;
• The parties’ respective earning capacities and access to financial resources;
• The effect of either party intentionally or recklessly wasting financial resources of the relationship, such as large sums of money lost through gambling;
• Circumstances of any liabilities incurred by either or both parties; and
• The extent that each party has financial responsibility for a child of the relationship under the age of 18.

The weight that each of these factors is given varies depending on the circumstances of each matter, so there is no presumption that property will be divided 50/50, although that is often a starting point for analysis.

As the Federal Circuit and Family Court has a wide jurisdiction to make property orders, it is impossible to say exactly what someone’s outcome in Court would be. Instead, we refer to entitlement ranges of around 10%, noting that where the parties might fall on this range can be impacted by other issues such as the size of the asset pool, the conduct of the parties during proceedings, the reliability of the parties as witnesses and the judge’s personal perception of what is just and equitable in the circumstances.

In this sense, determining likely legal entitlements is more of an art than a science, however, there are some patterns or similarities that tend to emerge across cases. Therefore, in addition to our family lawyers’ wealth of technical expertise, they are able to draw on decades of experience to ensure you are getting the most accurate, incisive advice.

What does it mean to formalise a property settlement?

In family law, “formalising” the terms of a property settlement is a crucial step to ensure that the agreement is legally binding on the parties. There are two main ways to formalise a settlement: either by submitting an application to the Court for consent orders or by properly executing a Binding Financial Agreement.

Each method has its own benefits and drawbacks, and we will advise you of which option is best suited to your circumstances.

Why do I need to formalise my settlement if my ex-partner and I already agree?

There are many reasons to formalise a property settlement, even if it has been a long time since you and your ex-partner separated. Most importantly, obtaining consent orders or executing a Binding Financial Agreement draws a temporal line in the sand which will prevent your ex-partner from making any claims on assets you receive in the future, such as inheritances. In the case of a Binding Financial Agreement, you can also prevent your ex-partner from making future claims for Spousal Maintenance.

When giving effect to the terms of your settlement, there are multiple steps which require either consent orders or a Binding Financial Agreement to proceed, such as:

• Transferring property titles;
• In some circumstances, listing a property fors ale;
• Qualifying for CGT rollover relief when transferring an investment property between the parties; and
• Seeking a superannuation split and rollover of entitlements from one party to the other.

How can Duffy & Simon help with my property settlement?

No matter where you are in the property settlement process, our family law team is here to help you resolve these matters quickly and cost-effectively, with the aim of achieving an outcome as beneficial to you as possible. We will provide you with clear, commercial advice tailored to your circumstances and assist you with the logistics of your property settlement from beginning to end.

Depending on your particular needs, we can:

• Advise you regarding your likely legal entitlements to assist you in negotiating with your ex-partner or to attempting to resolve your dispute through Family Dispute Resolution;
• Identify and advise you regarding related financial matters such as Spousal Maintenance and Child Support;
• Assist you with the disclosure stage of your matter, including gathering your financial documentation and requesting financial documentation from your ex-partner;
• Conduct negotiations on your behalf, particularly in circumstances where you and your ex-partner are unable to reach agreement on your own;
• Brief counsel on your behalf and represent you at private mediation, whether conducted prior to or during Court proceedings;
• Manage the process of obtaining a sworn valuation in the event you and your ex-partner disagree about the value of an asset;
• Draft and advise you regarding the documentation required to formalise your property settlement;
• In the event litigation becomes necessary or has already been initiated, prepare the required documents, brief counsel on your behalf, advise and represent you at all Court events; and
• Assist with the settlement process, including:
  
  • Holding funds on Trust in interest-bearing accounts on behalf of you and your ex-partner following the sale of a joint asset;
  • Preparing documents to wind up, or transfer interests in, companies, family trusts and businesses;
  • Preparing documents related to refinancing and mortgage discharges;
  • Transferring real estate titles;
  • Transferring vehicle registrations;
  • Closing and distributing the balance of joint bank accounts; and
  • Liaising with retail superannuation funds to effect superannuation splits and rollovers.

With firm-wide expertise across a broad range of practice areas, our colleagues can also assist you with related issues such as:

• Amending your Will and Powers of Attorney to remove your ex-partner as beneficiary / attorney;
• Wealth and estate planning now that you are no longer with your ex-partner;
• Setting up and administrating a new self-managed superfund; and
• Navigating tax liabilities triggered by your separation.

Whether you are considering separating from your partner or have been separated for some time, we will guide you through these complex, often emotionally charged, issues and empower you to move forward with certainty and assurance.

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