Property Settlement
Property settlement is the process of separating and dividing your finances and assets post-separation. This can occur at any time after separation, but must occur within 12 months of a divorce order or within 2 years of separation in a de facto relationship.
There are a range of matters that should be taken into account when determining a party’s entitlements to property. It will not always be a 50:50 division, and it is therefore important that you obtain advice from an experienced family lawyer who can explain your true entitlements and provide you with specific advice based on your personal circumstances.
Misconceptions about Family Law property settlements
Often in the breakdown of a relationship, when property settlements are discussed, advice from well-meaning friends and family can be misguided by common urban myths. Some of the misconceptions regarding property settlements include:
• That I can resolve my property settlement without a Court Order of Financial Agreement
• You don’t need to do a property settlement unless you own a house.
• I owned it before the relationship therefore it’s mine free from any claim from my ex partner.
• My name is not on the Title of the house or mortgage and therefore I have no rights to the house.
• I worked hard in this business and it’s mine free from any claim from my ex partner.
• I’ll lose my right to bring a claim for a property settlement if I leave the home.
• I get to keep my inheritances and gifts I received free from any claim from my ex partner.
• Being a stay at home mum isn’t valued and is not factored into a claim for property settlement.
It is essential that any property settlement agreement reached is formalised by way of Consent Orders through the Federal Circuit and Family Court of Australia (FCFCOA), or in some situations through a Binding Financial Agreement.
Family Law Consent Orders
When former parties to a marriage or de facto relationship reach a property settlement agreement, an application can be made to the FCFCOA to formalise that agreement by making a Court Order that is referred to as a Consent Order.
You do not need to personally appear in Court to obtain a Consent Order, and neither does your lawyer. The application that is filed in the Court is reviewed by a Registrar of the Court to determine whether it is just and equitable (fair), before it is made as a Consent Order. We will advise you about this process and whether the Orders sought are just and equitable.
Unlike a Binding Financial Agreement, Parenting Orders can also be made by the Court as Consent Orders. This means that an Order can be made by the Court which covers both your property settlement and children’s issues.
We can prepare the necessary documents including both the Application to the Court for a Consent Order and drafting the specific Orders sought.
A filing fee is payable upon the filing of an Application for Consent Orders.
Binding Financial Agreements
A Binding Financial Agreement (BFA) is an agreement entered into between a couple to determine how their property and finances will be divided in the event of separation. These agreements can also cover maintenance and can be entered into before, during or after a de facto relationship or marriage.
A BFA entered into before a marriage or de facto relationship is intended to prevent the parties from subsequently bringing a claim in Court for property settlement, or spousal maintenance if the parties separate. The Agreement sets out what will happen to each of the parties’ assets, liabilities and financial resources in the event that they separate; that is, who gets what.
It’s important to note that BFAs can occasionally be declared non-binding or be set aside by the Court. It is an area of the law that is very technical and constantly changing so it’s really important to seek expert legal advice if you wish to pursue this avenue.
Our view is that such Agreements are not appropriate in all situations and accordingly we do not prepare them in all situations. However, there are still circumstances where BFAs are appropriate. In each case we make an assessment of the party’s particular circumstances and if appropriate, we can assist you by preparing a Binding Financial Agreement to protect your property.
There are strict procedural and advice requirements that must be adhered to when formalising a property settlement by way of a BFA. Each party needs to get independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
The main difference between this agreement and a Consent Order is that a BFA is not reviewed by the Court and each party needs their own independent lawyer. This can often be attractive to couples if they want their agreement to be kept out of the public record. However, there are more risks associated with formalising an agreement by way of a BFA.
If the requirements to make it binding are not complied with, it will not prevent a party from subsequently making an application to the Court for a property settlement. There are also more grounds to set aside a Binding Financial Agreement than there are for a Court Order. It is therefore our preference to formalise matters by way of Consent Orders where possible.
How Can Andersons Help?
We offer a 90 minute initial meeting to develop a “Family Road Map” tailored to your personal situation.
All your concerns and questions will be addressed in this appointment and your lawyer will explain the process and outline a plan for next steps. All for a set fee.
For more information or to book your 90 minute “Family Road Map” appointment, please call 8238 6666 or email enquiry@andersons.com.au
