Divorce Property Settlement
– Ensuring a fair and reasonable outcome for you
When a couple separate it can initially be difficult to separate the finances. Sometimes there will be an intervening period where you may continue to share finances as it is just to difficult to separate it all while there remain joint debts and financial obligations including mortgages on the family home.
Our experienced family lawyers can assist with all divorce property settlement matters for Gippsland residents and beyond
Determining the asset pool
In order to determine an appropriate division of assets after separation, we first assist by determining what the asset pool entails. We prepare a concise and accurate list of all assets owned, and their values, in each parties’ name individually or jointly.
This can include many things such as a house, other real estate, cars, caravan, boat, shares, business, livestock, tools, furniture, superannuation. Likewise, we also need to the same for all debts which include: mortgage, personal loans, credit cards, private loans etc.
Sometimes, the value of assets can not be agreed to. In those situations, we employ the services of an expert valuer, such as with real estate, we utilise the expertise of a Sworn Valuer and have them prepare a report.
Some assets can be quite tricky to determine their value. In particular, businesses may need to be valued by a forensic accountant. That business value needs to take into account stock, plant and equipment, debts and goodwill.
Factors used to work out the distribution of property in a divorce
In order to determine a fair percentage of the assets, we must take into account the factors set out in Section 79(4) and Section 75(2) of the Family Law Act. Including:
- The length of the relationship.
- What contributions each party made to the asset pool including what assets they both brought in at the commencement of the relationship, whether either party received any inheritances, work cover or redundancy.
- If there are any contributions it is relevant to take into account how long ago those contributions were received.
- In regards to future needs, it is relevant to consider what income earning capacity the parties have, where any children under the age of 18 years are living, whether either party has any medical issues that would impact upon their financial needs.
Preparation of a Binding Agreement
If parties can agree on the division of their assets, then the Family Law Act states that only way that their agreement can be binding is if they have Consent Orders or a Binding Financial Agreement.
Obtaining Consent Orders, means we prepare an Application for Consent Orders form, which sets out in full detail all assets and liabilities of each party. We also give other relevant information, including what contributions each party made, what future needs factors are relevant, and what assets have been acquired or disposed of since separation.
We then prepare Consent Orders, which become the Court Orders, and it sets out what each person has to do, including what payments need to be made, or transfers, and by what date.
Once Consent Orders have been signed by both parties, and their solicitors, if they have one, they are posted to the Family Court, with a payment of their fee. The Orders are considered by a Registrar as to whether they are just and equitable in the circumstances. If approved, they are sealed by the Court, and then become binding.
Alternatively, we can prepare a Binding Financial Agreement. Similarly, it involves full details regarding assets, debts, and other relevant circumstances. It does not get sent to the Family Court for approval. However, to be valid, each party must seek independent legal advice, and each lawyer needs to sign a certificate evidencing that they have given their client advice in regards to the advantages and disadvantages of signing the BFA.