When you separate, it is extremely important to divide assets and liabilities as quickly as possible. Not only will this help you emotionally, but it will also protect you financially.
Below we set out some of the most common questions clients ask when they separate.
What property is included?
All assets and liabilities (whether held in joint or sole names) are included in the property pool. This includes items such as real estate, cars, boats, caravans, shares, superannuation, inheritances, compensation payments, bank accounts and so forth.
Do we have to go to Court?
Maybe, but hopefully not.
While it is not mandatory to attempt mediation in property settlement matters, it is highly advisable. Even in situations where there has been domestic violence or you feel you have no chance at successfully negotiating the matter, mediation is worth a shot. Most property matters do resolve at mediation and if it doesn’t, then mediation will narrow down the issues you disagree on, so when you apply to the Court there are less issues for the Judge to decide on (meaning it’s usually quicker and cheaper at Court).
If mediation is unsuccessful, we can continue to try negotiating.
If you have to apply to the Court because all other attempts to settle have been unsuccessful, there is still hope. Most property matters, even those before a Court, can be negotiated and resolved and do not require a Final Hearing.
What am I entitled to?
This is a difficult question to answer and requires an experienced Family Lawyer to take detailed instructions from you and then assess your situation.
In a nutshell, we need to look at the financial and non-financial contributions (or lack thereof in some cases) by the parties, together with the future needs of each of you.
Is there a time limit?
Yes. It is very important to ensure you do not miss the time limit. If you make an application to the Court out of time, you must first ask for leave of the Court (permission of the Court) to bring your application out of time. There is no guarantee your application to be heard out of time will be granted. This could have a detrimental effect on you financially.
If you are married, you have 12 months from the date of your divorce to commence court proceedings.
If you were in a de facto relationship, you have 2 years from the date of separation to commence court proceedings.
Commencing proceedings means filing an application with the Court. Negotiations do not constitute court proceedings.
I have reached agreement with my ex-partner and we are amicable, do I need Orders?
Most certainly, YES!
Reaching an agreement and having a ‘hand shake’ deal or even signing a statutory declaration does not meet the requirements of a binding agreement. This means that if you agree how to divide assets and liabilities, but never evidence this in a binding agreement, either one of you can apply to the Court in the future for a property settlement.
For example, Husband and Wife separate on 1 March 2019 and divide their assets and liabilities 50/50 because that seems fair. They each agree this is a good outcome and go their separate ways. 10 months later, Wife realises the couple’s 3 children live with her, she only works part time earning $20,000 per year while the Husband earns $150,000 per year. The Wife has spent the money she received 10 months ago on day to day living expenses for her and the children and now has nothing left. The wife receives some legal advice that she is likely entitled to more than 50%. However, the 50% the Wife received no longer exists. Therefore, the property to be divided is that which the Husband has. The application before the Court will be for the Wife to receive a split greater than 50% from the Husband’s share.
To avoid this type of scenario happening to you, you need Consent Orders or a Binding Financial Agreement. These documents do not involve the parties having to go to Court but give you the peace of mind of having your financial matters finalised for good.
For further legal advice on your property settlement matter, contact us at Turnbull Legal Solutions. We offer a FREE 30 minute consultation. During our initial meeting we will set out the steps you need to take as well as provide you with an estimate of the costs involved in resolving your matter.