Qualified property settlement lawyers, Melbourne

In family law property settlement, the court defines property as:

• Houses (including investment properties)
• Land
• Shares
• Money in the bank
• Furniture
• Motor vehicles
• Insurance policies
• Businesses
• Liabilities, including credit cards and mortgages
• Superannuation, though not technically property, can be treated as such in family law and may be split between the parties

This list is not exhaustive, and each case that goes to court will be determined by its own merits.

The Family Law Act 1975 provides a framework for property settlement that includes criteria to determine the division of assets and liabilities.

1. Identify the value of assets and liabilities
   The first thing to do is compile a list of everything in the asset or property pool, including real estate, bank accounts, investment properties, vehicles, mortgages, loans, and other debts. You must provide full and frank disclosure as per the legal requirements, ensuring that you disclose all assets to the other party.

2. Asses contributions
   Next, we evaluate the financial and non-financial contributions made by each party throughout the relationship. This can include financial contributions, parenting and homemaking contributions, and contributions to the welfare of the family.

3. Assess future needs
   The third criterion is to consider the future needs of each party, taking into account factors such as age, health, earning capacity, care responsibilities for children, and any other relevant circumstances.
   

4. Ensure a just and equitable division
   The federal circuit court aims to achieve a fair and equitable division of assets based on the parties' contributions and future needs. While a 50/50 split is a common starting point, it may be adjusted based on factors such as the parties' respective financial contributions, earning capacities, and other relevant considerations.

Negotiating a property settlement in a divorce involves communication, compromise, and often independent legal advice. 

First, you need to identify your asset pool ensuring a full and frank disclosure, before assessing the financial contributions and non-financial contributions made by each party during the marriage or de facto relationship. 

Next, you should seek legal advice from property settlement lawyers to understand your rights, entitlements, and legal options. 

Establish open and honest communication with your former partner, discussing your priorities, concerns, and preferences regarding the property settlement. If an agreement can’t be reached, consider engaging in mediation with a neutral third party. Mediation can help facilitate discussions, identify common ground, and work towards mutually acceptable solutions. Allow your lawyers to negotiate on your behalf, as they can communicate with the other party's legal representatives to reach a legally sound and fair settlement.

Out-of-court property settlements are when you and your previous partner reach a financial agreement without the need for family court proceedings. 

If you both accept the proposed property settlement, it is important to document in writing, especially where you enter into a transfer of property as part of the settlement, as you can benefit from a stamp duty exemption and it can also have capital gains tax consequences.

You can then formalise any agreement reached, via consent orders or binding financial agreements. This can save you time, money, and stress, as well as enable you and your ex-partner to tailor the agreement to your needs.

If a financial agreement can’t be reached amicably, then you may need to make an application to the court, asking them to make a decision for you about what is a fair and reasonable property settlement. 

The first stage of the court process is a conciliation conference. This is an opportunity for the Court Register – together with your family lawyer and the other party’s lawyer– to assist you in reaching a settlement. If settlement occurs at this stage, the matter can usually be finalised by you and the other party signing consent orders, either on the day or in the days following the conciliation conference. Fortunately, a lot of property matters are settled in, or as a direct result of, the conciliation conference.

If your matter doesn’t resolve as a result of the conciliation conference, the court will list your case for another court event; either an interim hearing or a final hearing.

At a final hearing, you and the other party, along with any other witnesses will give evidence in the hearing, where the judge is empowered to make any order that they consider appropriate to give effect to a property settlement.

At Carew Counsel, we do everything we can to reach an agreement before it enters the litigation stage, as this is a time-consuming process that can take an emotional and financial toll on you and your former partner.

The time it takes for property settlements to conclude depends on a number of factors, such as the complexity of the property pool, the level of cooperation between parties, legal representation, chosen dispute resolution methods, court involvement, financial disclosure timelines, negotiation efficiency, and the formalisation process through consent orders or a binding financial agreement. While some cases may be resolved quickly, others may take longer, and realistic expectations, along with legal guidance, are crucial during the process.

It is a common misconception that an informal agreement between separating partners regarding property and financial matters is legally enforceable. For legal enforceability, such agreements must be documented through either consent orders or a financial agreement.

Consent orders involve the preparation of an Application for Consent Orders, which outlines the parties' assets, liabilities, and the agreement's effect, and a Minute of Consent Orders, which specifies the court orders necessary for settlement. The documents are filed with the family court, and a registrar reviews and seals the orders if deemed just and equitable.

A financial agreement is an alternative to consent orders that is not considered by a court. Both parties must receive independent legal advice before signing, and it provides protection against future spousal maintenance claims.

“Act in haste, repent at leisure” is believed to have been adapted from the proverbial saying first expressed by William Congreve in 1962. His remark is about the perils of marrying in haste and repenting at leisure. The same can be said for agreements reached between parties without either of them having had legal advice and which you may later regret. 

Whilst it is not a requirement, it is highly recommended that following separation each person get independent legal advice. The consequences of what you may agree to are important and long lasting. 

Whilst you may have agreed on the care arrangements for your children and\or your property split of assets, what you have agreed on may be based on misinformation about what you think your entitlements are and you may be selling yourself down the river. 

There may be tax implications from what you have agreed on but which you have not considered. There may be technicalities that need to be complied with before a court will make consent orders for certain things. 

It is best to have separate lawyers for each party in getting legal advice as, your lawyer has an overriding duty to act in your best interests and if you see a lawyer who says they’ll give advice to both of you, that could be a very conflicted position and is to be avoided.

‍