Going through a divorce can be an emotionally difficult and overwhelming experience. One of the most critical aspects of the process is the division of property and assets. Protecting your assets during a divorce property settlement requires careful planning, expert guidance, and a thorough understanding of the legal framework. At Family Lawyers Mackay, we specialise in helping clients navigate these complex situations. Our team dedicates itself to providing complete support and personalised strategies to protect your interests.
A generally held misconception is that getting divorced is necessary to divide assets. However, you can start property settlement and asset division anytime in Australia after your separation.
Property Settlement: What Is It?
Property settlement concerns dividing assets when a marriage ends through divorce, annulment, or the breakdown of a de-facto relationship. The legal procedure for selecting asset division remains consistent regardless of marital status. ‘Property’ encompasses all capital assets, from finances and superannuation to homes, vehicles, liabilities, debts, and even inheritances.
How does the property settlement process work?
Australian family law inspires parties to reach settlement agreements for their belongings, as this approach is typically more efficient and less stressful. A property settlement aims to complete all financial matters between the parties involved.
Typically, a property settlement begins with mediation or family dispute resolution (FDR). If both parties can agree, they can decide to:
- Enter into a binding financial agreement (refer to details below);
- Seek court approval for the agreement by obtaining consent orders or
- Maintain the agreement as an informal arrangement.
However, the preferred path, particularly if opting for an informal agreement, is recommended to seek legal advice before making any decisions.
Who can file for a property settlement?
Anyone may apply for a property settlement regardless of wedding status. If a person had a marriage, he can file for a family law property settlement after their separation and within 12 months of getting a divorce order. Those who have been in a de facto relationship for at least two years or have a child or children with their ex-partner are eligible for a property settlement within two years of their separation.
Four Options for Dividing Property in a Divorce
A Non-Legal Arrangement
This approach is typically favoured when the divorce is amicable. Both parties need formal legal documentation to agree on mutual asset division. However, it’s important to note that legal documentation is necessary for one party to seek financial orders under the Family Law Act through the court.
Consequently, most divorced couples avoid this informal arrangement, and legal experts consistently advise against proceeding without proper documentation.
Binding Financial Agreement
The couple can sign this legal document at any stage of their relationship: before it begins, during its course, or upon its termination.
These agreements outline the terms for asset division between the couple. The court cannot overturn these terms unless exceptional circumstances arise.
You must have Solicitors engaged in drafting and finalising such agreements.
Consent Orders
When a divorcing couple agrees on how to divide their assets, they submit an application form to the Federal Circuit and Family Court of Australia detailing their asset split. The court then files these orders, and a Registrar reviews and approves them. Consent orders are prevalent for couples to complete their financial affairs.
Litigation entails taking the matter to court
Couples typically pursue this option when they need help with how to divide their assets. In litigation, the family court determines the division of assets and liabilities. The divorce settlement process in Australia usually spans about one year and can be costly. Additionally, the couple must regularly attend court.
Litigation is usually a last resort when all other options have been exhausted.
ALWAYS KNOW YOUR RIGHTS AND KNOW WHERE YOU STAND
By consulting one of our accredited family law mackay specialists.How to Compute the Asset Split During Divorce
By now, you should know how Australians divide assets during divorce property settlements. However, if, despite multiple negotiation attempts, both parties cannot conclude property division, what happens next?
First and foremost, it’s essential to recognise that divorce and property distribution are distinct legal processes. Divorce solely signifies the legal termination of a marriage. On the other hand, asset division and property settlement entail the formal distribution of properties after separation. A couple can finalise asset distribution while cohabiting or before the divorce is granted. If the court becomes involved, it follows a four-step process to determine how assets are divided in a divorce.
Valuing the parties’ property
The first step involves recognising and valuing the couple’s assets, liabilities, and economic resources. It’s vital to mention that all assets are valued, including those achieved before and during the marriage and those obtained after separation.
Assets contain cars, savings, real estate, lottery wins, and properties. Both parties’ superannuation benefits are also assumed to be part of the asset pool.
Evaluating Both Parties’ Contributions
Examining each party’s financial and non-financial contributions comes next, following the asset valuation.
Evaluating The Needs of the Future
Calculating both parties’ future needs is essential. This procedure considers both partners’ age, health, income, and earning capacity. Additionally, the care and support of children are important factors to consider. The court evaluates whether adjustments are necessary to the asset pool’s division based on both parties’ future needs.
Practical Effect
The court will ultimately assess the practical impact of the property settlement on both parties. We take this action to prevent one party from being unfairly disadvantaged after the settlement.
If the parties reach a property settlement agreement, what subsequently happens?
Suppose the parties reach an agreement, typically through mediation or family dispute resolution. In that case, they can request consent orders from the court – these are written agreements endorsed by the court.
Alternatively, they can create a binding financial agreement (BFA). This document outlines the property division and may address other matters like spousal maintenance and child support.
Both consent orders and BFAs hold legal weight in the Family Court. Under Australian family laws, if one party violates the agreement, the other can seek enforcement through the Family Court.
ALWAYS KNOW YOUR RIGHTS AND KNOW WHERE YOU STAND
By consulting one of our accredited family law mackay specialists.What arises if the parties can not decide on a property settlement agreement?
Suppose you cannot reach an agreement on a property settlement. In that case, you may need to seek court orders regarding the division of assets. This typically entails a lengthy and costly process, often causing heightened stress. Court hearings can take several months or even years before reaching a conclusion and a decision from the court. The court will rely on the four-stage divorce property settlement process outlined earlier to decide.
Which details do I require to provide my attorney?
Giving your lawyer thorough details about your economic situation is vital. Data entails:
- Bank and mortgage records
- Payslips and rent receipts
- Bills and evidence of household expenses
- Tax returns
- Credit card and loan statements
- Business profit and loss reports
- Superannuation statements
- Centrelink benefit statements
- Records of children’s expenses, like school fees and activity invoices
- Share dividend statements and information on other investments
After reviewing all your documents, we can decide on the most suitable course of action.
Property Settlements Based on De Facto Relationships and the Australian Family Court
Previously, the Federal Circuit Court and the Family Court exclusively handled financial matters only in marriage cases, with exceptions in the NT and ACT. During this period, state and territory courts resolved de facto financial disputes and property settlements through court proceedings.
Now, both the Family Court and the Federal Circuit Court have the authority to issue orders after the dissolution of both marriages and de facto relationships.
Family Law: Seeking Legal Counsel for a Property Settlement
When handling divorce property settlement matters in Australia, our reliable team strives to secure the most profitable outcomes for our clients encountering divorce or separation.
We are proud to rank among Mackay’s leading family lawyers. Drawing upon our testimonials and five-star reviews, you can rely on our proficient lawyers to cooperate with you toward the optimal resolution for your family. We prioritise meeting expectations, adhering to tight deadlines, and fostering open communication to achieve your desired outcome.
Contact us today to discuss your cases and discover how our skilled family lawyers can assist you.
ALWAYS KNOW YOUR RIGHTS AND KNOW WHERE YOU STAND
By consulting one of our accredited family law mackay specialists.FAQs:
Why is it essential to protect your assets during a divorce property settlement?
Protecting your assets during a divorce property settlement is vital to confirm a proper and equitable property division. It allows you to safeguard your financial interests, preserve your hard-earned assets, and maintain financial stability for your future.
How can Family Lawyers Mackay assist in a divorce property settlement?
Family Lawyers Mackay specialises in guiding clients through the divorce property settlement process. Our experienced team provides expert advice, assists in gathering necessary documentation, identifies and values assets, and facilitates negotiation or mediation. We work tirelessly to protect your interests and achieve a favourable outcome.
What documents do you need for a divorce property settlement?
The documents required for a divorce property settlement may include income records, property deeds, loan agreements, tax returns, investment statements, and other financial documentation. Family Lawyers Mackay can help you identify and gather the necessary paperwork to support your case.
How do I protect my assets during a divorce property settlement?
There are several strategies to protect your assets during a divorce property settlement. Working with Family Lawyers Mackay, you can explore prenuptial agreements, postnuptial agreements, or establishing trusts. Our team will help you determine the most suitable asset protection strategies based on your circumstances.
What is the role of negotiation and mediation in a divorce property settlement?
ADR(alternative dispute resolution methods) techniques like mediation and negotiation can assist parties in coming to mutually agreeable decisions without the need for drawn-out legal battles. These procedures support honesty, cooperation, and compromise. Family Lawyers Mackay can help you with mediation or negotiation by promoting clear communication and standing up for your rights.
