Navigating the choppy waters of separation is never an easy task. More often than not, one major issue arises – how should the property and assets between the parties be divided?
Contrary to popular belief, in Australia, the division of property following a separation doesn’t automatically start from a point of equality. Every relationship is unique, and so too is the process of determining a fair and equitable distribution of assets.We understand that dealing with substantial financial matters, such as the division of assets and property, can feel like navigating a complex labyrinth that sometimes leads to a family law dispute.
That’s where we come in. As your trusted advisors, we ensure that you’re not navigating these complexities alone. By seeking our professional legal advice, we can help pave the way to a just and equitable outcome that respects your interests and circumstances.
Now, you might be asking, “What exactly is a property settlement?” It’s a critical question, and we’re here to answer it.
A property settlement, or financial arrangement, is an agreement reached between the parties involved to divide their assets, liabilities, and financial resources following a separation. It’s important to remember that this encompasses more than just real estate and cash in the bank. It includes a broad range of assets such as superannuation, shares, jewellery, artwork, investment properties, businesses, and much more.
This agreement can be reached with or without the assistance of the ‘Family’’ Courts. Under the Family Law Act, a property settlement can be documented using either a Consent Order or a Binding Financial Agreement. But how do you decide which is best for you? That’s where our expert property settlement lawyers on the Gold Coast and in Brisbane step in. We’ll guide you through the complexities and help determine the most suitable option based on your unique circumstances.
The law encourages individuals to find a resolution outside of Court wherever possible. If both parties can reach an agreement informally, this can be formalised through Consent Orders. These valuable legal tools can be used to document agreements concerning:
The beauty of Consent Orders is that they can be approved by a Court without you having to step foot inside a courtroom. This is, of course, provided they reflect a just and equitable division of assets based on financial and non-financial contributions, and any family welfare contributions, such as care of children, made by each party during the relationship. This also takes into consideration any differential in the needs of the parties, whether due to the roles performed by parties during their time together or otherwise.
Negotiating a settlement outside of Court and embodying this in a Consent Order can result in financial settlements being reached, recorded, and implemented with significant savings in legal costs and time. However, if the situation necessitates going to court to resolve your financial relationship, remember that time limits can apply from the date of separation (for de facto couples) and from the date of Divorce Order (for married couples). As your trusted legal guides, we’ll ensure you’re aware of these timelines and navigate the process with confidence.
In the realm of family law, Binding Financial Agreements (BFA) serve a crucial role. They act as a binding contract between couples who have decided to part ways. These agreements can clearly specify how the property owned by the couple or by either party will be distributed between them, and they can also document any maintenance outcome.
Unlike Consent Orders, Financial Agreements don’t go through a court approval process. Once all the formalities, as specified in the Family Law Act, have been completed by the experienced family lawyers acting for the parties involved, the Financial Agreements are binding upon their signing.
It’s essential to understand that Financial Agreements differ from Consent Orders. The methods through which they are enforced, and the reasons that might lead to their cancellation, differ from those of a Consent Order. So, whether a Consent Order or a Financial Agreement is the best fit for your unique situation is a matter on which we, as your trusted and experienced family lawyers, can provide advice.
If a direct agreement between a separated couple isn’t achievable, it falls to the court to determine how the relationship property should be divided, and to address the question of spousal maintenance.
Consent Orders and Binding Financial Agreements are both legal tools for documenting the division of property. Consent Orders can be approved by the court without you having to step inside a courtroom, provided they reflect a just and equitable division of assets. On the other hand, Binding Financial Agreements don’t go through a court approval process and are binding upon signing once all formalities have been completed (this includes a lawyer for each party signing a Statement as to the advice which has been provided).
When working through your property settlement process, our experienced family lawyers pay close attention to specific factors. These considerations help determine how property might be adjusted:
Delving into the property settlement process, our property settlement lawyers adhere to a detailed, four-step process of reasoning which is enshrined in the legislation to guide Judges, to ensure a just and equitable outcome.
Our team works to determine the property pool. This involves careful assessment of assets, liabilities, and financial resources, ensuring everything is on the table before the division begins.
We start by determining each party’s contributions to the property pool. This encompasses financial contributions, such as income, as well as non-financial contributions like labour in a family business, and in the role of home care and child upbringing
A percentage split is then allocated to reflect the parties’ contributions. Our goal is to ensure fairness and transparency throughout this step.
The process doesn’t end at the initial split. We take into account the considerations listed above (affecting each party’s present position – health, age, income earning capacity, ongoing child-care responsibility) to adjust the split, ensuring it reflects the unique circumstances of your de facto relationship or marriage.
Finally, we undertake further adjustments if necessary (for example, the costs, and tax and revenue consequences, of selling or transferring items of property between spouses), to ensure the outcome aligns with the principles of a ‘just and equitable’ settlement under the Family Law Act.
In family law property settlement, one size doesn’t fit all. There are situations that require a special focus on one or more of the four steps above.
For instance, for shorter relationships, the focus may be more on the financial and non-financial contributions, as future needs are less likely to play a significant role.
Alternatively, in the case of extremely small or large property pools, we may need to approach the impact of the factors at step 3 differently to ensure a just outcome.
With each unique case, rest assured, our team of experienced property settlement lawyers is adept at navigating through the complexities of the ‘Family’ Courts, tailoring our approach to best suit your circumstances. We’re with you, every step of the way.
In the maze of property settlements, we’re here to guide you to paths of relief. One area we often shed light on is the potential for certain tax concessions and duty exemptions. When property is transferred between separated spouses, relief from tax and/or duty can be provided under the Family Law Act if the transfers are implemented according to Consent Orders, or a Binding Financial Agreement.
It’s important to keep in mind that these tax and concessions can result in substantial savings.
To take full advantage of this, we work with you (and your other advisers) closely to ensure the transfers are properly recorded in your Court Orders or your Binding Financial Agreement.
One element is undeniably critical to every property settlement, whether it’s being negotiated outside of court or determined by a Judge, and that’s securing the right legal advice. We’re here to provide you with expert guidance, tailored to your unique situation, ensuring that you can make informed decisions regarding your family law matter.
As a specialist family law firm on the Gold Coast, our legal services extend beyond property settlements to encompass all associated financial matters and legal issues following a divorce or de facto relationship breakdown.We pride ourselves on being more than just legal professionals; we’re your trusted advisors, your experienced team of family lawyers and divorce lawyers. Our goal is to arm you with the necessary information to make strategic decisions, identifying strengths and weaknesses in your case. If you require this type of advice or assistance, don’t hesitate to reach out to us.
What type of assets are considered in a property settlement?
A property settlement considers a broad range of assets beyond just real estate and cash in the bank. These can include superannuation, shares, jewellery, artwork, investment properties, businesses, and much more.
What if we can't reach an agreement for the property settlement ourselves?
If a direct agreement can't be reached between the separated couple, the court steps in to decide how the relationship property should be divided and to address the question of spousal maintenance (if relevant).
Are there any tax implications related to property transfers post-separation?
In some cases, there can be tax and/or stamp duty exemptions when property is transferred between separated spouses. These exemptions can be applied if the transfers are enacted according to Court Orders or a Binding Financial Agreement, potentially leading to substantial savings. We're able to better provide insight into this via a consultation.
If you've been together for 4 years, do you automatically get half of your former partner's wealth?
We hear questions like this quite often. To put it simply, the answer is ‘No'. Our law doesn't operate on presumptions based on relationship length leading to defined entitlements.
Instead, our legal system undertakes a meticulous process of reasoning, taking into account the contributions made throughout the relationship and the personal circumstances of spouses at its conclusion.
These factors will vary in each case, which means there's no 'one size fits all' outcome. A resolution that achieves justice and equity in one case might not be the appropriate outcome in another. We're here to guide you through this process, ensuring that your unique circumstances are considered thoroughly and fairly.
What if our relationship was relatively short? Does the property settlement process change?
Yes, for shorter relationships, the focus may be more on financial contributions, as future needs are less likely to play a significant role.
If we have a complex situation, can you tailor your services to fit our needs?
Absolutely. Our team of experienced property settlement lawyers is adept at navigating the complexities of each unique case, and we tailor our approach to best suit your specific circumstances.
