Property Settlement Lawyers in Newcastle
Upon separation, many couples will be faced with the issue of deciding how to deal with the property of their relationship. This can be a contentious issue and can create animosity between the parties during what is often times already a stressful period.
A property settlement is the process by which a couple finalises their financial relationship. It will usually involve the division of property and assets between the parties and may include future payments being made by one party to the other. It requires an assessment of the parties’ assets (what the parties own) and liabilities (what the parties owe) and an evaluation of the contributions made by each to the property of the relationship. An assessment of the future needs of each party must also be made.
Property settlement is not something that is exclusively available to married couples; it is also available to any de facto couple (same-sex or opposite-sex). Also, unlike the divorce process, property settlement can be carried out immediately after separation. This means you do not need to wait 12 months. However, if you have recently obtained a divorce there are time limits that apply to seeking a property settlement. This must be done within 12 months of the divorce being finalised.
The process of a property settlement can be as simple as the two parties coming to an agreement. Sometimes, however, the process is more difficult and requires mediation or even court intervention. At Berryman Partners, we understand that every relationship is different and every couple will be in a different financial situation. We also understand that disputes concerning your hard earned property and assets can be particularly traumatic. We can assist you at every step of the process.
If you have separated, there are a number of options available to you and your partner to finalise your financial relationship. We will provide you with personalised advice to adequately reflect your financial situation and properly protect your interests.
Financial agreements and consent orders
Financial agreements and consent orders are two of the options available for carrying out a property settlement. Both of these are formed after an agreement is reached between the parties to the relationship and they are executed as a signed, written document.
Financial agreements and consent orders do the same thing as a property settlement carried out by the Court; that is, they divide the property of the relationship between the two parties based on contributions made to the acquisition of the asset pool and future needs.
There is little difference between financial agreements and consent orders. The main difference is that financial agreements do involve the Court at all. As long as the legal requirements are satisfied, they are legally binding as soon as they are signed. The main legal requirement of a financial agreement is that both parties to the agreement obtain independent legal advice and a certificate from their respective lawyers to evidence the fact that such advice has been provided.
Consent orders, on the other hand, must be sealed by the Court before they are legally binding. This doesn’t mean, however, that you need to actually attend a court hearing (your solicitor can arrange for the consent orders to be filed and sealed). Also, consent orders cannot be changed except by the Court, whereas a financial agreement can be overridden by any future financial agreement between the parties.
The advantage of both of these agreements is that they avoid the stress and trauma that can be associated with contested court hearings. They protect you and your interests and they are legally enforceable instruments which means the court can issue penalties to a party who is in breach. They also provide finality in that they prevent your partner making a future claim seeking additional property.
We can assist you in negotiating a financial agreement or consent orders with your partner and we can prepare the documents for you. We will advise you on the law as it relates to your situation and we will listen to you to ensure that your interests are protected.
Where the parties to a relationship breakdown cannot come to an agreed property settlement, it will be necessary to make an application for the Court to carry out the settlement. This application can be made to the Federal Magistrates Court or the Family Court and can be made jointly or individually. When made individually it does not require the consent of the other party.
When filing an application for financial settlement orders, you must complete a financial statement in which you make a full and frank disclosure of all your assets and liabilities. This is in the form of an affidavit.
There are four steps which the Court will undertake in making property orders:
- Assessment of the asset pool: This involves an identification of the assets of the relationship and an assessment of the assets and liabilities of the parties. The assets which may be included in the asset pool will include the respective incomes of the parties, contents of bank accounts, all property of the relationship (including houses, cars and furniture etc) and superannuation interests.
- Evaluation of contributions: In this step, the Court looks at what contributions each party has made to the property pool as a means of determining each parties’ entitlement to a portion of the pool. Contributions may be financial such as income or other sums of money, or non-financial such as domestic responsibilities and contributions to the welfare of the family. Non-financial contributions are considered to be equally as important as financial contributions and are given equal weight. The contributions which are considered may have been made prior to or during the relationship, or even after separation. You can read more about this on our Family and De Facto Law FAQs page.
- Assessment of other factors: Next, the Court will address other factors which should influence the portion of the asset pool which each party is entitled to. These factors include the age and health of each party, the present and future needs of each party, the future earning capacity of each party and whether either party is providing care for a child of the relationship.
- Adjustments to ensure a “just and equitable outcome”: This step involves a final evaluation of the distribution of the asset pool to ensure a just and equitable outcome. This means that the outcome is fair for all parties concerned having regard to their individual situations. Such adjustments are at the discretion of the Court.
When a married or de facto couple separates, obligations may arise for one party to provide financial support to the other where that other person is unable to adequately support themselves. Applications for spousal maintenance are made to the Federal Magistrates Court or the Family Court. Applications must be made within 12 months of the divorce being finalised in the case of a married couple and within 2 years of the breakdown of the relationship in the case of a de facto couple. An order for spousal maintenance made by the Court will automatically cease once the person receiving the maintenance remarries.
If you are considering making an application for spousal maintenance, we can advise you on your eligibility and assist with the application. There are differing requirements that must be satisfied depending on whether you were a party to a marriage or a de facto relationship. Generally speaking, however, the Court will balance your needs against the means of the other party to pay. The Court will consider your age and health, the portion of the property pool which you were awarded, your future earning capacity and whether the marriage or de facto relationship has affected your ability to earn an income.
- Can consent orders or property orders be varied?
- During my relationship with my former partner I did not work as I was at home looking after the children. Will this affect my portion of the property pool?
- When my ex-partner and I commenced our relationship I already had several investment properties. What will happen to these during our property settlement?
- I have acquired significant property since the breakdown of my relationship. Will my ex-partner be able to get any of this in the property settlement?
- If I leave my home (leaving my partner living in the house), does that mean I lose my entitlement to a share of the house?
- I have been ordered to make spousal maintenance payments to my former spouse and I want to know when that order ends?
- Can a spousal maintenance order be changed?