Property settlement involves the distribution of assets and liabilities between a couple whose relationship has broken down.
Do I have to be divorced to split the property?
No. All that is required is the breakdown of your relationship. If you are divorced and have not had a property settlement, it is extremely important that you see a specialist family lawyer as soon as possible to discuss time limitations on applying for a property settlement.
Do we have to go to Court?
No, not at all. If you have already agreed on a property settlement, your lawyer can prepare binding documents to formalise your settlement without the need for costly and stressful court proceedings.
Most couples should have a formal property settlement so that they can proceed with their new life without being concerned that their former partner may make a claim for property settlement at a later time. There are also tax, stamp duty and other savings to be had if a property settlement is formalised.
What if we can’t agree?
If you cant reach agreement about property settlement, it will be necessary to apply to the court for a property settlement. However before taking this step, your lawyer should discuss ways in which an agreement might still be achieved including by participating in mediation.
You can still resolve your property settlement by agreement at any time during the court process. The vast majority of matters settle without the need for the court to hear and determine the property settlement. However if it is necessary for a court to determine the settlement, the court will make property settlement Orders which are binding on the parties.
How does the court decide?
Firstly the court will consider all of the property and liabilities of the parties. This includes assets that a party may have brought to the relationship and assets acquired after separation.
Next the court will weigh up the contributions to the property pool by both parties, including financial contributions and non-financial contributions. Adjustments will be made where a party has made greater contributions. Assets owned by a party at the start of a relationship, inheritances, gifts of money and similar contributions by one party will be taken into account.
The court will then consider the future needs of both parties, including such factors as the parties’ respective ability to earn income and the responsibility for children.
Finally, having taken all of the relevant information into account the court will endeavour to make a decision that is just and equitable for both parties.
We can help
Property settlements can be quite simple or extremely complex. Either way the settlement should be handled correctly by a specialist family lawyer. The consequences of not doing so can be significant – you may not achieve the best outcome, your settlement might be poorly drafted or contain errors. The tax, stamp duty and other consequences of a poorly drafted settlement can be very costly.
Contact us to discuss your property settlement.
