When a relationship has ended, most separating couples want to make arrangements to divide their assets and liabilities between them in a fair, final and binding way, so that they can each move forward with some security that their former partner or spouse isn’t going to come back later and want some more.
How to work out what is ‘fair’ isn’t always easy. It isn’t always just a matter of dividing everything 50/50 because there are lots of times where that wouldn’t be fair.
Because every relationship is different, the Courts have laid down a number of principles that are applied to work out what a fair division would be in each individual situation. Some of the things taken into account are:
- what each person’s assets and debts were when the couple started living together;
- how long the couple lived together;
- whether there were significant gifts or inheritances received by either of them during the relationship, and then how that money was utilised;
- whether there are children of the relationship, their ages and, if they are under 18, with which parent they will live in the future;
- each person’s state of health and earning capacity moving forward (particularly if that earning capacity was affected in some way by the relationship e.g. having taken time out of the workforce to care for children).
These and other factors are all used in negotiations with the other party to try to reach an agreed property settlement. We can help you to work out how all those factors affect your particular situation, and help you to negotiate a good outcome for you.
Even if you have reached a ‘handshake’ agreement with your former partner, it is best to get some expert Family Law legal advice about whether that is or isn’t a good deal before proceeding further, contact Central Coast Family Law by clicking here.
If my partner and I are both happy with the settlement, why would I need to have it formalised?
Formalising a negotiated settlement has a number of benefits.
Firstly, it becomes binding and final, meaning that you can go forward with confidence and peace of mind that what assets you take with you out of the relationship, and those that you accumulate later, are yours and your former partner has no claim on them.
Secondly, you might be paying Stamp Duty and Capital Gains Tax unnecessarily. There are exemptions and benefits available that might apply to you.
Thirdly, there are clear enforcement procedures available if a Consent Order is breached by one of the parties.
How is the agreement made binding?
Once an agreement about has been reached between the separated couple about how their assets and debts are to be divided between them, the agreement needs to be properly documented to make it both binding on the separated couple and enforceable by the Court. The most effective way to do that is by asking the Court to make “Consent Orders”.
What happens if we can’t reach an agreement ?
If an agreement can’t be reached then it might be necessary to commence Court proceedings, to bring things to a head. We can help you with all of the processes needed to promptly and efficiently bring your claim before the court and to represent you in any court appearances. We can make sure that you comply with all the Court’s requirements.
NB Importantly, there is a deadline for commencing Court proceedings for a property settlement. Applications for property settlement must be filed with the court, either:
- in the case of a married couple, within 12 months of a divorce being granted; or
- in the case of a de facto couple, within 2 years of the date of separation.
Outside of those times, the permission of the Court is required before an application for a property settlement would be able to be filed. Sometimes the Court gives that permission and at other times it does not, depending on the individual circumstances.
If we do commence court proceedings, does that mean a long and costly fight?
The Court provides plenty of opportunities and lots of encouragement to resolve issues in dispute without having to have a Judge do so.
Settlement discussions can take place in a number of ways. The Court conducts Conciliation Conferences to enable the parties and their solicitors to have a confidential settlement meeting to either settle the matter altogether, or at least limit the issues in dispute.
Out-of-court settlement discussions can take place either just by way of discussions between the lawyers acting for each of the parties, or in a more organised format such as Mediation.
We are experienced in dealing with these matters and we can expertly advise and guide you through this process.