If your marriage or a de facto relationship has come to an end, you will need to consider how to divide the property and financial resources of your relationship.
Our experienced family law solicitors can provide you with advice about your rights and entitlements to a family law property settlement, how to best protect your property and financial interests, and the practical and cost-effective solutions that are available to you in order for you finalise your property settlement.
Both you and your former partner have an obligation to the other to provide full and frank disclosure of all information relevant to your property settlement. This obligation of disclosure requires detailing your financial circumstances, producing documents to each other, and answering specific questions in certain circumstances. All financial documents should be provided in a timely manner.
Your options to resolve your family law property settlement include:
- Having an informal agreement with your former partner on how you will divide your property, without the intervention of the Court; or
- Entering into a legal agreement with your former partner on how you will divide your property, either by entering into Court orders (Consent Orders) or a post-separation Binding Financial Agreement; or
- Applying to the Federal Circuit Court (or Family Court) for the Court to make orders to finalise your property settlement, where you have been unable to reach an agreement with your former partner
Depending on what types of assets you and your former partner have, and the values of those assets, you may decide that an informal agreement will be the most cost-effective option for you.
Consent Orders & Post-Separation Binding Financial Agreements
In most cases, it is in your best interests to consider entering into a formal legal agreement to resolve your property settlement with your former partner, either by making an application with your former partner to the Court for Consent Orders to resolve your property settlement, or by entering into a private legal agreement known as a Binding Financial Agreement (“BFA”).
If your property settlement is finalised by Consent Orders or a BFA, then both you and your former partner are best protected from the other making any property settlement claims in the future. Resolving the division of your property by Consent Orders or a BFA not only gives you certainty as to the outcome of your family law settlement, but you will usually be exempt from paying any transfer duty or registration fees on the transfer of any properties between you and your former partner.
Also, if your agreement includes splitting superannuation payments between you and your former partner, then it is usually a requirement of your superannuation fund that the agreement be formalised by Consent Orders or a BFA.
Going to Court
Where an agreement cannot be reached, then your best alternative may be to file an application for property settlement in the Federal Circuit Court (or Family Court). The Court can make orders in relation to financial and property matters on the breakdown of a marriage, and in eligible de facto relationships.
An application for property settlement orders to the Court will usually involve the following process:
- An Application is filed;
- A Response is filed by the other party;
- The Application comes before the Court for the first time (“the First Mention”). The parties will usually be seeking interim or preliminary orders;
- If financial disclosure has not been completed, the Court will usually require the parties to provide full disclosure of their financial circumstances to each other, and obtain formal valuations for properties where the values of any assets are in dispute;
- The Court will normally then make an order for the parties to participate in a settlement conference, either by a conciliation conference or a private mediation, to try and negotiate a settlement;
- If the matter has not resolved at the settlement conference, the matter is returned to Court for directions for a trial;
- The matter is prepared for a hearing; and
- The matter is heard by a Judge for a final decision.
Our Family Law Team will provide you with advice and represent you in your Court proceedings, and we will work with you to try and reach a final resolution with the best possible outcome for you.
Time Limits for Property Settlement Applications
There are strict time limits that apply if you wish to apply to the Court for property settlement orders (including Consent Orders).
If you were married, then your application to the Court for a property settlement adjustment must be made within 12 months from the date of your divorce becoming final.
If you were in a de facto relationship, your property settlement application must be made within 2 years from the date of your separation.
If you make an application to the Court outside of these time limits, then you will need to first obtain the leave (permission) of the Court to proceed with your application. This is not always granted.
For over 60 years Finemore Walters & Story have provided caring, hands on advice to thousands of the region’s families, individuals, and institutions. Contact our Family Law Team today to discuss your property settlement matter.
Contact Us or call us today at (07) 4153 0000!