Our Property Settlement Lawyers have extensive knowledge in successfully representing and assisting clients in dealing with their financial matters following the breakdown of a marriage or De Facto relationship.
Generally, all property (including international/domestic real property, vehicles, superannuation, debts and interests in trusts) is factored into the property settlement irrespective of whose name is recognised as being the legal owner of specific property. A Family Law/Divorce Property settlement sets out the division of such property.
We can assist you in negotiating a divorce/property settlement agreement in circumstances where you and the other party have been unable to do so.
In circumstances where a property settlement agreement has been reached, we can provide you with tailored advice as to the best way to finalise this agreement. This could be by obtaining Consent Orders through the Family Court of Western Australia or by utilising a Binding Financial Agreement.
It is very important that you formalise your property settlement agreement in the appropriate legal manner with the correct protective operative provisions to ensure you will be released and indemnified from the other party’s future liabilities. Failing to do so could result in the other party bringing a claim against you in the future despite there being an informal agreement between yourselves.
Property Settlement – Four Step Process:
In determining how property of a relationship is to be divided the Court utilises a four-step approach as follows:
Step One – Your Asset Pool:
This includes all assets, liabilities and financial resources that you and your spouse own, jointly and solely. There is a legal obligation that all assets or liabilities owned jointly, solely or in any international jurisdiction are disclosed.
A common misconception is that your asset pool is determined at the time you separate, however this is not the case. Your asset pool is determined at the time you finalise your property settlement, or when the Family Court determines your property settlement, on a final basis. The Family Court do have the ability to make adjustments to entitlements to the asset pool, taking into account the disparity in asset pool value at the time of separation, and the asset pool value at the time your matter is finalised.
Step Two – Your Contributions:
Contributions made during the course of your relationship include both financial and non-financial aspects. Whether one party was the primary income earner, and one the primary caregiver of children, are all relevant when determining your property settlement.
Contributions can often be difficult to assess, and each relationship will be treated on their unique circumstances. There is no set formula for determining the respective contributions of each person.
Step Three – Future Needs:
There is an obligation for the Court to consider the ‘future needs’ of both parties. In short, whether either party requires an adjustment to their entitlements in the asset pool, by virtue of the following factors:
- The age and state of health of each party.
- The income, earning capacity, property or financial resources of either party.
- Whether either party has the care or control of a child under 18 years of age.
- The duration of the relationship, and the extent to which it has affected either parties’ ability to earn an income.
- This is not a conclusive list of all future needs factors that the Court may consider.
Step Four – What Is ‘Just And Equitable’:
After analysing your contributions, and ‘future needs’ factors, the Family Court will come to a final decision about how your asset pool should be divided. Given that there is no exact method when making this decision, the Family Court needs to be satisfied that the overall property division is ‘just and equitable’.
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Frequently Asked Questions (FAQs)
What is a Property Settlement?
A property settlement is the division of property owned by parties’ following the breakdown of a marriage or de facto relationship.
Is the process of Property Settlement the same for married and De Facto relationships?
The same general principles apply, regardless if the couple was married or in a de facto relationship.
The main difference is that superannuation cannot be split between de facto couples in Western Australia at present, however this may change in the future.
How do I obtain a separation agreement?
You can reach an agreement as to the just and equitable division of property accumulated during your marriage or de facto relationship by direct negotiation, mediation or other informal means including with assistance from legal representatives.
If you are unable to resolve the matter through these processes, it may be necessary to commence legal proceedings and seek the assistance of the Courts to reach an outcome.
If at any stage the parties manage to reach an agreement between themselves, it is possible to formalise the agreement by way of Consent Orders or Binding Financial Agreements.
What are the steps in a property settlement?
Property settlement after separation involves the Family Court analysing the asset pool, your contributions and future needs, before reaching a conclusion about how your asset pool should be divided.
How long does a property settlement take?
The length of time for Property settlements largely depends on the willingness of each of the parties to reach an agreement. Once an agreement is reached matters generally take 2 to 3 months to be finalised.
If the parties are unable to resolve their matter be agreement, property settlements can at times take longer than 2 years to resolve.
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