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Family Law Property Settlement
At ALA Law (formally Amanda Little & Associates) we can assist you with all aspects of family law property settlement and property division. We specialise in providing advice regarding division of assets and preparing financial agreements.
The Family Law Act and case law sets out a 4 step approach that the Court must follow when determining a property settlement. This includes:
- Ascertaining the value of the property pool;
- Considering the financial and non-financial contributions of each party pursuant to s.79 of the Family Law Act;
- Considering the future care needs of each of the parties pursuant to s.75(2) of The Family Law Act;
- Determining as the final step if division pursuant to consideration of s.79 and s.75 (2) factor is just and equitable.
Division of assets can be complicated and your solicitor will ask you questions such as:
- What assets did each of you have at the commencement of the relationship?
- Was there any lump sum monies received during the relationship?
- Have there been post separation financial contributions by either party?
- Do either of you have care of children under the age of 18 years?
- Do either of you have a disability?
- Does either party have a higher earning capacity then the other?
These questions will assist your lawyer to provide you advice about an appropriate percentage for divisions of your assets.
The process of reaching a property settlement by Consent follows a standard path which includes:
- Exchange of Financial Disclosure. This is a mandatory step in all financial matters and requires the parties to exchange details and disclosure about all of the asset and liabilities (debts) in their name or which they hold an interest.
- Prepare a Balance sheet – once the parties have exchange full financial disclosure your Lawyer will prepare a Balance sheet. This will set out the asset “pool” that is available for division.
- Provision of advice and settlement percentages and options – Once the pool is determined your lawyer will then provide you with advice as to the likely outcome of you matter and range of outcomes, as well as identify key area sin your case. For example, if further information is required, if expert evidence may be required (e.g., valuation of an asset)
- Enter into negotiations – at this point, we will usually then enter into negotiations to settle the matter based on the balance sheet and the advice provided to you;
- Formalise the Agreement by way of Application for Consent Orders.
This is a common request from clients. Unfortunately, it is not as simple as writing the agreement you have reached on a piece of paper and both signing it.
This is not legally binding, will not be accepted in future by a Court, will not protect you from future claim as your assets grow, will not bind a deceased Estate (i.e if one of you passes away the other can apply against the estate and the superannuation for provision) and will not be accepted by LRS for property transfers. It also leaves both parties open to future applications against each other.
The parties are still required to exchange disclosure and then formalize the agreement by way of Application for Consent Orders and Terms of Settlement.
At ALA law we offer fixed fee Consent Orders – which means you will have peace of mind as to the cost associated with this process.
The answer is yes – you do!
Everyone has assets, just not the way we think.
A common example is your superannuation is an asset of a relationship that can be divided and as it is a mandatory contribution by your employer, all parties to a relationship have at least some superannuation. So even though you don’t have any substantial non-superannuation assets, a settlement is still required to ensure your superannuation is safe into the future from claim.
Even if there are no assets to divide at the point of separation, undertaking a formal settlement stating that you each keep what you have will ensure you are not left open in the future for a claim to be made against you for the work you put into growing your personal assets.
Undertaking a settlement now – will protect you from future claim and you can mov eon with your life knowing that the hard work you put in, will be yours alone.
If you are married you have 12 months from the date of Divorce.
If you are in a de-facto relationship you have 2 years from the date of separation.
Proceedings can be commenced out of time with leave of the Court, so time itself does not completely bar an application is the requirements for leave can be met.
At ALA Law we always recommend our clients effect their property settlement prior to, or simultaneously with their Divorce to ensure there is no issue associated with the statutory limitation periods.