Family Law Report - 9 Issues of Family Separation
Issue 6: Property Settlement
Having separated and decided that your marriage or de facto relationship is at an end, the long-term issue is the finalisation of financial issues between yourself and your ex-partner.
Issues surrounding property can include the family home, investment properties, commercial properties, family companies, businesses and trusts.
Superannuation, including self-managed super funds are also extremely important and can be split or divided between parties to achieve a fair outcome after separation. Even if your house and other assets have reduced in value and your mortgage is identical to the value of your house, it is likely that there will be significant superannuation which needs to be split between you and your ex-partner. Receiving your fair share of the superannuation when you separate will have a very significant effect upon your financial position when you reach retirement age.
If you are concerned that your ex-partner is disposing of assets or dealing with property without your consent and contrary to your interests, then we can apply to the Court for orders. These are referred to as injunctions and prevent your ex-partner from selling, disposing or otherwise dealing with assets of the relationship. In these circumstances it is essential that you obtain advice urgently and your lawyer act immediately.
If there is real estate property, for example your home or an investment property but you are not on the title, this does not mean that you don’t have an interest in the property. This situation may enable your ex-partner to sell, transfer or borrow money against the property. In these circumstances, to prevent this happening we can assist by lodging a caveat over the property on your behalf to prevent further non-informed action and to protect your property interests.
Generally, both parties are anxious to finalise property and financial (including superannuation) issues relatively quickly and cost effectively.
We regularly assist people who have separated and have reached an agreement between themselves in relation to property issues. We can advise you in relation to the ‘fairness’ of that agreement, taking into account the various considerations that are set out in the Family Law Act.
If our advice is that the agreement or settlement is unfair, we can assist you by writing to your ex-partner or their lawyer to negotiate a fair settlement quickly and cost effectively. If a settlement is reached, we can then assist with the preparation of legal documents (either Consent Orders or Binding Financial Agreement) in order to finalise and formalise the agreement.
If these negotiations do not lead to a settlement, or if it appears your ex-partner (or their legal representation) is not reasonable, then we can assist by filing an application in the Court on your behalf. This application is for Orders in relation to all property including superannuation. Filing an application in the Court does not mean that your dispute is going to proceed to a final hearing. It may be that the filing of the application will cause your ex-partner to become more reasonable. Prior to the matter going to Court, the Court will insist upon the parties attending either a conciliation or mediation conference. Further efforts will be made to resolve the matter in these conferences.
Legal costs are a factor that must be considered. In our dealings we are always mindful of the legal costs to our clients. We will keep you fully informed about costs so that you have all the financial information you need to make good decisions about settlement.