Property Settlements
Uncertainty about financial matters after separation can cause confusion. To alleviate some of these concerns contact the highly skilled and experienced team at Pearsons Lawyers for your first appointment so you know where you stand.
Know Where You Stand
Property Settlement Lawyers Melbourne
The specialist Family Law team at Pearsons Lawyers have decades of experience in all aspects of financial matters and property division for separating couple. This includes:
- The division of assets (real estate, superannuation, savings, shares, companies, businesses and motor vehicles, etc);
- Binding Financial Agreements;
- Consent Orders;
- Setting aside existing Court Orders;
- Negotiations including mediation and litigating complex property matters involving trusts, businesses and companies, claims by third parties such as parents and other partners;
- Advice in relation to all aspects of litigation;
- Subpoenaing documents to gather necessary evidence;
- Lodging of caveats to protect property rights; and
- Urgent restraints and injunctions to prevent the dissipation assets.
Property Settlement
What is the process for a property settlement?
A property settlement is the division of all of the assets and resources of the parties. This includes real estate/the family home, commercial/investment properties, any businesses and companies, motor vehicles, savings accounts, shares, superannuation, boats, caravans, trailers, horses or any other asset or resource either party owns or controls.
The Family Court undertakes what is commonly referred to as the ‘four step process’.
Step 1: Identify
Determining what is included in the asset pool to be divided between the parties. This includes identifying and valuing all the property and liabilities.
Step 2: Contributions
Determining each party’s financial and non-financial contributions. Financial contributions include gifts and inheritances, compensation payouts, redundancies, any rent accommodation and the like. Non-financial contributions includes the care of children, household and domestic chores. There can be negative contributions known as ‘’wastage’’ such as excessive gambling, drinking or drugs.
Step 3: Future Needs
Assessing the needs of each party which includes a comparison of their income and earning capacity, any health issues which may disadvantage one of the parties financially, the care of the children which affects the ability to work long hours or obtain gainful employment at all and the length of the relationship itself.
Step 4: Just and Equitable
The last step involves a consideration of all of the above factors to work out what a fair settlement between the parties should be. In order words whether the property pool should be divided equally or whether one party should receive a greater share and what that greater share should be.
Pearsons Lawyers can give you advice at your very first interview, as to how all of these factors are relevant to your particular case and what you can expect by way of an overall settlement. By the end of the interview you will “know where you stand”.
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Binding Financial Agreements
Property Settlement Options
(A) Binding Financial Agreements cover 4 categories:
(i) Spousal support
An agreement can be entered into by both parties that neither of them will seek financial support for themselves from the other party. This ensures security with respect to ongoing financial support for your former partner. Alternatively, you can have a Binding Financial Agreement which makes provision for ongoing periodic financial support on a regular basis from your former partner but this is in rare circumstances and would be where your spouse is unable to work.
(ii) Property Arrangements
Binding Financial Agreements can finalise property arrangements between the parties where the option of having a Consent Order ratified by the Court is not available either because the parties choose not to have a Court seal or alternatively, the agreement is one which the Court would not approve because it is outside the range of what the parties could expect to receive from the Family Court. Sometimes entering into a Binding Financial Agreement can be quicker than a Court Order.
(iii) Pre-Nuptial
Binding Financial Agreements which are entered into in contemplation of a marriage or a de-facto relationship commencing are known as “Pre-Nups”. These agreements specify what happens in the event of a separation.
(iv) Binding Child Support Agreements
Binding Child Support Agreements are often prepared when parties want to formalise child support arrangements to include not only periodic child support as assessed by the Child Support Agency but but also may include other expenses such as:
- Educational costs including school fees, books, uniforms and camps; and
- Health costs including private health insurance, out of pocket expenses for medical, dental, orthodontal, chiropractic, osteo etc.
- Extracurricular activity
These Binding Child Support Agreements can be registered with the Child Support Agency and can also filed with the Family Court.
(B) Consent Orders
Consent Orders finalise property matters between parties by way of a formal Court Application and minute of the proposed Orders sought by agreement.
Usually, one of the parties’ lawyers prepares the documents which are then signed by both parties and filed with the Court.
A Registrar of the Court reads the documents and makes an assessment as to whether the agreement is within the range of what the Court would normally expect.
The Court then seals the Orders without the need for either of the parties or solicitors to attend Court and the Orders are released. These Orders are final and they are enforceable and they remain on the Court file.
(C) The Judge’s Decision
Some parties are unable agree on the on the division of property between themselves despite negotiations between solicitors and/or mediation. In these instances, proceedings are issued and the matter takes its course in the Family Court or the Federal Circuit Court.
Mediation is a compulsory step in the litigation process. Approximately 80% of cases resolve at or before mediation.
In the event that the matter does not resolve at or before mediation the Court case will proceed to Trial. Each party and their witnesses give evidence and submissions are made.
After hearing all of the evidence and submissions the Judge, in due course, will normally hand down their decision. The timing of the handing down of the decision depends on the complexity of the case. The Judge’s decision is final and can only be appealed if there is an error in law.
Property Settlements
Complex Family Law Property Matters
Most cases involving the separation of assets can be relatively straight forward. There are those instances where cases are complex as a result of factors such as:
- assets being owned in the names of or with third parties such as parents or siblings;
- the existence of complicated company or trust structures;
- inheritances/gifts and the timing of receipt;
- assets being held overseas; and
- the failure by one party to make full and frank disclosure of their income, finances and their assets.
Sometimes a matter is complex as a result of the personality of one or both of the parties where there may be inherent mistrust or a pattern of failing to cooperate.
The specialist Family Law team at Pearsons Lawyers have decades of experience. There is no case too complex for us to deal with.
We have the knowledge and we also have the numbers in our experienced team of lawyers to be able to deal with any case. We apply a team approach to deal with complex cases which means that cases are dealt with in a proactive, efficient and cost effective manner.
Know Where You Stand
Book Your Free First Appointment
During your free first appointment we will:
- Discuss your circumstances.
- Answer any questions about the divorce process.
- Discuss your options.
- Advise you of your entitlements.
- Provide you with information about the cost of a divorce and separation.
Call our office or fill in the contact form to book your free first appointment.
Office Hours
Monday to Friday 8:30am – 5:00pm
(Please note we are closed between 1-2pm)
Book Your Free First Appointment
Know Where You Stand
Frequently Asked Questions
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What is property?
Often people think of houses, cars, shares and bank accounts as property. Property also includes interest in businesses, loan accounts in trusts, the right to sue another person for damages and superannuation entitlements.
The definition of ‘’property’’ for the purposes of the Family Law Act is extremely broad and is essentially anything of commercial value.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
When can property be divided?
Property can be divided at any time and there is no requirement that the parties be separated or divorced.
For couples that are married, they have twelve months from the date that their divorce becomes final to finalise their property settlement or commence Court proceedings. If the twelve months expires, they then need to obtain permission from the Court to resolve their property matters.
De facto couples have two years from the date of their separation within which to finalise property matters without obtaining permission from the Court.
It is imperative that property matters are resolved as quickly as possible after separation.
The experienced Family Law team at Pearsons Lawyers can advise you about your options including the possibility of obtaining permission to commence Court proceedings for a property settlement or spousal maintenance after the time has expired.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
How do we divide our property?
In the vast majority of cases parties are able to reach agreement either through negotiations directly between themselves, with the assistance of a lawyer or with mediation with or without lawyers. If agreement can be reached it can then be formalised relatively quickly.
If agreement cannot be reached Court proceedings may need to be commenced. Part of the Court process is compulsory mediation. Most cases resolve at some stage during the litigation process and often at mediation after there has been an exchange of relevant financial document, identification of property and all the necessary property having been valued.
If the parties cannot reach agreement then the Court will hear the evidence and it will decide how the property is divided.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
Is superannuation property?
Superannuation is property and is divided between separating couples the same as other property is.
Superannuation is treated as property under the Family Law Act as it is valuable. It is different to other property such as a house because it cannot be mortgaged, sold or otherwise used for benefit today. It is a future “nest egg” known as a “financial resource”.
Superannuation entitlements can be substantial, sometimes running into the hundreds of thousands or millions of dollars. Superannuation is accumulated in Industry Funds and increasing in self-managed Superannuation funds.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
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What does it cost to get a property settlement?
Most lawyers charge by the hour. Depending on the experience and skill of the lawyer their charge per hour will vary. Most lawyers will be able to give an estimate of the cost that it will take to document a property settlement. Costs will vary depending upon complexity of the matter.
It is important that a lawyer informs the client about the costs that they are incurring throughout the process so that they are at all times aware of the costs and where they stand.
At Pearsons Lawyers we will advise of our costs at the initial interview and throughout the process. Our fortnightly itemised accounts provide transparency.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
Do I need to document the property settlement?
In most cases separating couples engage lawyers, reach agreement about the division of property and have that agreement formalised and documented so that there is no dispute in the future.
Sometimes couples reach an agreement between themselves, sell property and divide money between them without having the agreement documented and formalised. This is extremely risky as several years later there may be a significant change in either parties’ financial circumstances and a further adjustment of property may be sought by a party when the other party thought that everything was finalised.
These delayed settlements can become complex and add unnecessary costs. It important to obtain advice from our team at Pearsons Lawyers upon separation and have any agreed property division properly documented.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
How is a property settlement documented?
If the parties can reach agreement they can complete forms and file them with the Court and provided that the property settlement is proper a Court officer known as a Registrar will make orders without the need for the parties to attend Court. These are called consent orders and are relatively quick and inexpensive.
Alternatively, the parties can document their agreement by way of a financial agreement. This is a contract under the provisions of the Family Law Act and sets out the terms of the agreement to finalise property and/or spousal maintenance matters between the parties.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.
Do I need a lawyer to finalise property matters?
There is no mandatory requirement for separating couples to engage a lawyer to finalise their financial matters except for Binding Financial Agreements.
If financial matters are resolved by way of a Binding Financial Agreement, the parties must engage separate and independent lawyers who sign certificates that they have provided their respective clients with legal advice.
If a property settlement is being documented by way of Consent Orders parties do not need to engage lawyers. However, engaging a lawyer is highly recommended to ensure that all of the relevant property is considered, to help negotiate a property settlement and to have the agreement properly documented.
To arrange your first appointment with a specialist Family Lawyer at Pearsons Lawyers contact us today or call 1300 699 688 and know where you stand.
This article is general information only and is not to be relied upon as legal advice. Please seek legal advice as appropriate.