Family Law Separations: Dealing with Property and Finances

Separation is a stressful experience and knowing where to start can feel overwhelming.

You would be relieved to know that a huge majority of property settlements are finalised without the need for costly court proceedings. This is usually achieved in one of two ways: Consent Orders or a Binding Financial Agreement. Both methods involve documents we can draft and finalise with you and electronically file with the Court if relevant. The whole process can be completed here at our office!

Here are some initial things to consider;

– Are there funds that could be accessed without your consent? Perhaps you should notify your bank about the separation and make sure 2 signatures would be needed to withdraw funds

– Are you aware of your relationship assets (the “property pool”)? The first thing your solicitor will ask you to do is list all of the assets and liabilities of both of you and their current approximate value. Any evidence of these values will be useful

In considering how to distribute the assets, there are many factors to consider, such as;

– length of relationship

– initial contributions of the parties

– relationship contributions of the parties

– post separation contributions of the parties

– the age and health of each party

– earning capacity

– care of the children

Why is documenting the agreement important?

A common question asked of us is “why do I need to involve lawyers when we are in agreement?’ There are a few reasons why we say it is vital to document the agreement.

1. Stamp Duty could be waived. If one of you intends to keep a jointly held property, the transfer will have stamp duty payable unless you have a family law agreement. Having our team draft the settlement document is usually a lot less than the stamp duty!
2. Certainty. Your spouse could change their mind and decide they want more. Parties have a long time to bring a claim – 12 months from the date of divorce (which cannot happen until 12 months after separation) or 2 years from the date of separation in de facto matters. A verbal or even written agreement between the two of you will not be enough to stop a claim down the track. It can be a long time to wait for final resolution of the relationship and to allow you to move on with your life.
3. Change of assets. Without a legally binding agreement, you have not severed the financial relationship and any change in assets could still be relevant. A property settlement takes into account the current values of the assets and liabilities, not their value at separation. So if you have increased your superannuation or savings, your partner could still be entitled to those increases. What if you win the lotto or someone passes away and you are entitled to an inheritance? With a settlement agreement, these things would be protected. And if the other person runs up credit cards or other debts, you will not be responsible.

Book an appointment with one of our experienced and compassionate practitioners to get advice about your specific circumstances today

to start to compile the information needed for your first appointment