Property Settlements - What Your Lawyer Needs to Know

Your family lawyers will begin the process of a property settlement with an Initial Assessment.  The purpose of this meeting is to allow the lawyer to get a complete idea of your assets and those of your partner.  The process can be expedited with some careful preparation.

In particular, your family lawyers will want:

• A timeline of your relationship with your former partner, including the date you began living together and the date you separated.  Your dates of birth are needed as well as those of any children.
• Your assets and those of your former partner need to be listed at three different periods in the relationship: at the time you commenced the relationship, at the time you separated, and any changes since the time of separation and the commencement of legal proceedings.
• Assets can include money, real estate, stock holdings, furniture, vehicles, boats, etc.

You should also be aware that there are time limits applicable to bringing property settlement court proceedings.  If you are married, you can start property settlement proceedings at any point before you actually divorce.  After the divorce, you have 12 months to bring an action.  (An application can be made to Court to have proceedings commenced later than that – but that application can be refused).

A "de facto” couple – a relationship that exists at law as a couple but is not a marriage – can commence property settlement within two years of separating.  Again, a Court may grant an extension on that but can also refuse.

Does Your Lawyer Have Court Experience?

It is preferable to keep things out of Court, for a number of reasons.  Cost, delays in court proceedings, the uncertainty of result and the heightened tensions that can result from a hearing are the principal drawbacks.  That said, your family law lawyer in Brisbane, Melbourne, Sydney or Perth should have courtroom experience, either at the Family Law Court or Federal Circuit Court level.  The Court can determine a fair and equitable division of property, though at any time the parties involved can settle proceedings by consent, if approved by the Court.

Ways to "Keep it Out of Court”

There are many ways to avoid a court hearing and one of the purposes of the initial consultation with the lawyer will be to lay out these choices and assess their appropriateness to the situation.

If you and your former partner are on civil or good terms, an informal agreement may work, though this provides little legal protection.

A Binding Financial Agreement is another private agreement between you and your ex-partner.  It must meet the requirements of the Family Law Act 1975.

An application for Consent Orders is an application to the Family Court with accompanying court orders for division and maintenance issues.  It requires the agreement of both parties and must be ruled fair and equitable by the Court.

These options are ways of resolving legal problems without going to court and involve you and lawyers for both parties.  Alternative Dispute Resolution (ADR) involves independent third parties, with the aim of achieving an out of court result.  Arbitration, Collaborative Law and Early Neutral Evaluation are three ADR methods, short of Mediation.

Throughout the process, your level of preparation will assist your family lawyers in making the right choices with you for an equitable property settlement.

Pre-nuptial Agreement

A binding financial agreement can be made at different stages of a marriage or de facto relationship. Financial and property matters can be decided upon before entering a relationship with a pre-nuptial agreement. This is a contract that two partners sign before getting married or declaring their relationship "de facto.” It declares the dividing of property should the relationship dissolve. The agreement can be reviewed and presented by family lawyers working on property settlement claims for both you and your ex. But it is important to note that pre-nuptial agreements are not iron-clad. There have been some cases in Australia where the binding financial agreement that was signed before marriage was not executed. One ex-partner claimed she was under duress during signing and this in turn voided the financial agreement that was made. This case went before the courts and set a precedent for future cases involving pre-nuptial agreements.