Property Settlement Lawyers
Property & Financial Matters
Property & Financial Matters - Family Law Property Settlement Lawyers Central Coast
Following a separation a married or de facto couple will need to divide their property. The Family Law Act 1975 outlines several steps that must be followed by separating parties in order to achieve a just and equitable division of their property;. It is not always a matter of just dividing everything down the middle. Our expert Family Law Property Settlement Lawyer, Amelia Cox will be able to guide you through the family law property settlement process.
Time Limits
Strict time limits apply for the filing of family law property settlement applications:
Married couple
If you are married, the deadline for a property settlement application is 12 months after the date of your Divorce Order.
De facto couple
If you are a de facto couple, the deadline for a property settlement application is 2 years after the date of your separation.
Exceptions
The Court will not grant leave to determine an out of time property application unless:
- The parties consent to the matter proceeding out of time; or
- Hardship would be caused to a party or child if leave were not granted.
The Five Step Process
Our Family Lawyers Central Coast will advise you about your property settlement entitlements utilising the five step process outlined in the Family Law Act 1975 and in family law cases.
Step 1: The Court (and lawyers) must first consider whether it is just and equitable to make any adjustment to either parties’ interest in property following a separation.
Step 2: Identify and value the property, liabilities and financial resources of the parties. The property pool is identified through a process called financial disclosure.
Step 3: Assess the contributions of each party. Each party will have made both financial and non-financial contributions throughout the relationship.
Step 4: Assess any relevant future needs and factors of each party.
Step 5: Consider whether the proposed division of property is just and equitable between you and your former spouse.
Whilst the above may seem simple, we strongly recommend you seek the advice of our Family Lawyers Central Coast before reaching a family law property settlement.
What is financial disclosure?
In accordance with the Federal Circuit & Family Court (Family Law) Rules 2021, parties must disclose all sources of earnings, income, property and other financial resources. Parties must also disclose any property that has been disposed of or acquired in the 12 months prior to separation or since final separation.
Your family lawyer will typically provide you with a list of documents that you are to collect to complete your financial disclosure. The documents are likely to include:
- bank statements
- taxation returns
- details of any shareholdings
- superannuation statements
- Certificates of Registration
- mortgage statements
- credit card statements
- personal loan statements
- payslips
- company financial statements
- business activity statements
- trust deed
- Any other documents which evidence your assets and liabilities.
To progress your property settlement matter in a timely manner, it is important that you provide these documents to your lawyer as soon a possible.
What are contributions?
The Family Act 1975 recognizes three types of contributions
- Financial contributions are contributions of money made towards the acquisition, conservation and improvement of any property owned by a couple either jointly or separately. These contributions can be made directly or indirectly.
Examples of financial contributions include: a party’s income (e.g. wage/salary), savings, inheritance, lottery/gambling winnings, gifts from family members, loan repayment, payment of household expenses etc.
- Non-financial contribution are efforts or acts carried out by the parties towards the acquisition, conservation and improvement of any property owned by a couple either jointly or separately.
Examples of non-financial contributions include: renovations to a property, maintenance of a house or motor vehicle, gardening etc.
- Contributions made by a party to the welfare of the family which include a party’s role as homemaker and parent.
What are future needs and factors?
In accordance with section 75(2) of the Family Law Act 1975, the Court must consider the future needs of each party and any other special circumstances that may require a property settlement adjustment.
The section 75(2) factors include:
- The age and state of health of each party
- Any disparity of income, earning capacity, property and financial resources
- Whether a party has care of a child
- Commitments of a party to support themselves or a dependent
- A party’s eligibility to receive a pension, allowance or benefit
- The extent to which a payment of maintenance could enable a party to access further education or training and improve their earning capacity
- The effect of the proposed order on a creditor’s ability to recover debt
- The extent to which one party has contributed to the other party’s income, earning capacity, property and financial resources
- The extent to which the duration of a marriage has affected a party’s earning capacity
- The need to protect a party who wishes to continue their role as parent
- The financial circumstances of any current cohabitation of either party
- Orders made under section 79 of the Family Law Act 1975
- Any child support paid or to be paid by either party
- Any factor or circumstances that needs to be taken into account for reasons of justice
- The terms of any binding financial agreement
What if we agree about the division of our property?
If you reach a property settlement agreement with your ex-spouse about the division of your assets, you can resolve the matter in two ways:
- An Application for Consent Orders: The Application briefly sets out details of each party including a statement of assets, liabilities and financial resources and outlines the financial consequences of the proposed property settlement agreement.
Along with the Application, a document called Consent Orders (also known as Minute of Order or Terms of Settlement) outlines the step by step process of how the parties will practically implement their property settlement agreement.
- Binding Financial Agreement: is a private contract between parties which sets out how they will divide their property. The Agreement is not filed with the Court. There are very stringent requirements that must be followed in order for a Financial Agreement to be binding and enforceable. Both parties must receive independent legal advice before signing the Binding Financial Agreement.
What if we do not agree about the division of our property?
Before you can commence family law property proceeding in the Court, you must complete the following mandatory pre-action procedures:
- Invite your ex-spouse to participate in family dispute resolution.
- Agree on a dispute resolution service and attend the service. Upon completion of the family dispute resolution you will receive a Certificate of Dispute Resolution.
- If there is no family dispute resolution service available, if your ex-spouse refuses to participate or if you still cannot reach agreement, you must provide written notice of your intention to commence Court proceedings. The Notice must include the following:
- the issues in dispute;
- the orders to be sought if a case is started;
- a genuine offer to resolve the issues, and
- a nominated time (at least 14 days after the date of the letter) within which the other person must reply.
- If you have not already done so, you must ensure that you have complied with your duty of full and frank financial disclosure.
If you need advice regarding your Family Law property settlement or any other family law matter, please contact Brazel Moore Lawyers on 4324 7699.
