We understand that agreeing on property division following separation or divorce can be a difficult process. Ideally, it is a situation best resolved without resorting to litigation. Our property settlement lawyers in Adelaide can assist you through the process by way of mediation or Collaborative Practice to reach a final agreement which can then be formalised in a Consent Order to be filed in court by agreement.
Questions that arise can often include:
The housing and transport needs of you, your former partner and your children
Access to bank accounts, savings and investments
The status of superannuation, long service leave entitlements, inheritances, potential compensation claims and debts
If you cannot reach an agreement after some form of dispute resolution, then you can apply to the court for property settlement orders. There is time limit when making a court application. Married couples must apply to the court within 12 months of divorce and de facto couples must apply to the court within 24 months of the dare of separation. While extensions can be obtained in some circumstances, speak to us immediately if you're out of time, as further delay may prejudice your entitlements.
The court determines your matter using a four-step process pursuant to the Family Law Act. The first step is to identify and value the property of you and your former partner held jointly and individually. Consideration is then given to each party’s contributions to the relationship including financial, non-financial, and contributions to the welfare of the family including as parent and homemaker.
The court then assesses you and your former partner's future needs and includes a comparison of factors such as age and health, your ability to work, income and financial resources, and whether you have the care of children under the age of 18 years. Finally, the court will consider whether, in all the circumstances, it is just and equitable to make an order for adjustment of property.
As well as seeking orders from the court for property settlement, you may also be entitled to seek orders for spousal maintenance.
If you require the services of some of the best property settlement lawyers in Adelaide, Swan Family Lawyers can assist you.
Frequently Asked Questions
Is a property settlement agreement binding and enforceable?
There are multiple ways to reach a property settlement agreement, including formal and non-formal processes. If you reach an agreement with your former partner about the division of your assets and liabilities between you, then we suggest the terms of your agreement be formalised in a Consent Order to be filed in the Federal Circuit and Family Court of Australia. You do not have to attend at a court hearing. Your agreement is reviewed, signed and sealed by a Registrar of the Court, making the terms of your agreement final, binding, and enforceable. This ensures that neither party can make a future claim against the other.
It is recommended you engage a property settlement lawyer to ensure you are safeguarding yourself and your future.
What should be included in a property settlement agreement?
A property settlement agreement sets out how all the jointly and individually owned assets and liabilities of you and your former partner are to be distributed between you. Such property settlement agreement can include (amongst other things) how property such as real estate, shares and investments, jewellery, savings, insurance policies, superannuation, motor vehicles, and even pets are divided between the parties. Property settlement agreements also include how the liabilities are to be divided including the mortgage, credit cards, and such other joint or individual liabilities.
To gain further insights into negotiating an amicable property settlement agreement, consulting expert property settlement lawyers is recommended.
Can I write my own property settlement agreement?
As soon as separation occurs, you can initiate and finalise the property settlement agreement process. The minimum separation period before applying for a divorce is 12 months, however you can negotiate the division of assets and liabilities during this period and formalise your agreement any time before seeking a divorce. You and your partner can certainly write up the terms of agreement between you, but we suggest that you consult an experienced property settlement lawyer to ensure the agreement reached is a fair settlement to you. We also suggest that the terms of your property settlement agreement be formalised by way of Consent Orders to be filed in the Federal Circuit and Family Court to make the agreement final, binding and enforceable.
Seeking assistance from experienced property settlement lawyers can speed up the process and potentially save you from unnecessary court proceedings.
How do you separate the assets and liabilities in the property pool?
The first step in all property settlement matters is to identify and value all the property that is available for division. This includes all assets, liabilities, and superannuation, owned jointly and individually at the time of separation. We then consider the contributions made by each party during the relationship, including financial and non-financial contributions, and contributions made to the welfare of the family as parent and homemaker. The parties’ respective future needs are then considered, and an adjustment of the property pool is then made to each party accordingly. It is not an automatic 50:50 division of assets and the Court is required to consider the contributions and future needs of each party when deciding a just and equitable distribution of the assets and liabilities in the property pool.
It is best to connect with property settlement lawyers to ease the court proceedings.
How long does property settlement take in separation?
If you are recently separated, you can commence property settlement discussions as soon as you wish. De facto parties have a two-year period from the date of separation to finalise their property settlement. Married couples can finalise their property settlement agreement prior to becoming divorced, however they must keep in mind that upon a Divorce Order taking effect, they have a 12-month period to finalise their property settlement agreement.
Starting your property settlement negotiations shortly after separation is recommended to ensure unhindered access to bank accounts, investments, and savings. Some matters can be resolved quickly and amicably, whilst others can become complex and require determination by the Court. Contact a property settlement lawyer today to discuss how your matter can be resolved.