Planning a separation
It is a common misconception that separating from a partner (married or de facto) has to result in a lengthy court battle, and a trial.
Many people who separate from their partner manage to divide their assets and liabilities, and plan for their children, without the need to go to Court, or have a Judge make decisions on their behalf.
However, in order to achieve this outcome, you need to know how to work out what is a fair and reasonable division of the marital assets. Our property lawyers will ensure you know your rights and entitlements.
Another common misconception is that you should see a lawyer only once you are in a dispute, or have separated. However, we recommend that you talk to West Family Lawyers before you separate. This is because it is generally much cheaper and easier to use a lawyer to avoid a dispute, than it is to use a lawyer to resolve a dispute. Also, we can help you avoid (sometimes irreversible) mistakes.
When parties to a marriage or de facto relationship reach an agreement as to the division of assets and liabilities, and the plans for their children, they may then lodge the relevant documents with the Family Court, which set out that agreement. The Court will assess the proposed agreement and consider whether it is fair and equitable, and if so the Court may pronounce Court Orders that make the agreement legally enforceable.
In almost all cases, the husband and wife, or de facto partners, will disagree on at least some aspects of how this should be done. Or, in some cases, the husband and wife will agree, but one of the parties is not actually getting a fair deal, and may not even realise it.
Over the past 40 years, the legal system in Australia has developed a detailed understanding of how to work out, in each case, how to reach a fair settlement of the property of a marriage.
At West Family Lawyers, we can explain this to you, and help you:
- work out a fair settlement;
- negotiate with your spouse to ensure both parties understand why it is a fair settlement; and
- prepare the necessary documents to work through legal obstacles (such as transferring interest in real estate or business assets).
This is why we say, talk to West Family Lawyers before you separate and try to avoid a dispute.
If you are already in dispute, West Family Lawyers have the experience and expertise to resolve the dispute with a view to minimising cost and emotional pain.
The Five Steps
Whilst the law often appears complicated, the initial steps to the division of marital assets are reasonably straightforward. If parties to a marriage or de facto relationship cannot reach agreement, the following steps are generally how the Family Court will approach the issue. Therefore, this is the process that West Family Lawyers will consider when advising you.
Step 1 – Information Gathering
All of the assets and liabilities of the relationship (often referred to as the ‘marital pool of assets’) must be identified and a value agreed for those assets and liabilities, and failing agreement on their value, must be valued.
Step 2 – Fair and Equitable (to alter the interests)
Once the asset pool has been determined, consideration is given to whether or not it is ‘just and equitable’ to alter the parties interests in their property. This cannot be assumed.
Step 3 – Contributions
It must be established how the marital pool of assets came about, and in this regard an assessment must be conducted as to:
- the assets and liabilities of each of the parties at the commencement of the relationship;
- the financial contributions made by each of the parties during the relationship;
- the non-financial contributions made by each of the parties during the relationship, specifically relating to:
- the improvement of an asset, for example renovating a house; and
- the welfare of the family (parenting and homemaking).
At this stage, the Court may consider the (interim) outcome of its analysis in terms of a percentage, often referred to as a ‘Contributions Calculation’.
Step 4 – Adjustments
At this stage of the process, the Court has considered only the past, it then turns its mind to the future. In this regard, the Court assesses the future needs of each of the parties, and how the initial ‘Contributions Calculation’ should be adjusted. There is a long list of considerations; the most common of which are age, health, earning capacity and whether the party will be caring for any dependents in the future.
After assessing the adjustment considerations, the Court will arrive at an amended Contributions Calculation, once again often in terms of a percentage, but sometimes on an asset by asset basis.
Step 5 – A Final Fair and Equitable Test
The Court will then conduct a ‘check and balance’ to ensure its considerations are fair and equitable, taking into account all the circumstances.
At West Family Lawyers, we suggest that you research before you separate, and try to save significant Court and legal costs.
Advice at West Family Lawyers
West Family Lawyers provides advice and representation regarding:
- Financial/Property Settlements
- Family Court Proceedings
- Family Court Consent Orders
- Children’s Issues
- De Facto Relationships
- Child Support
- Parenting Plans
- Superannuation Splitting
- Spousal/De Facto Maintenance
- Negotiation and Mediation
- Settlement Advice and Scenario Modelling
- Asset Protection – Injunctions and Preservation of Property
- Enforcement of Orders
- Setting Aside Property Settlement
Property Law FAQ’s
Sometimes yes, sometimes no, sometimes – it depends. Each family law matter depends on the particular facts and circumstances.
Pre-nuptial agreements are called Binding Financial Agreements in Australia and are formulated according to Australian family law legislation and principles. They can be entered into before, during or after a relationship.
Sometimes yes, sometimes no – it depends. Each family law matter depends on the particular facts and circumstances.
No. Australia is a no fault jurisdiction. In other words, it does not matter who left who, or why.
No, they will be considered by the Family Court. They may be treated differently but generally, they are included in the asset pool available for division. It does depend however on a number of different factors and obtaining good family law advice is key.
Yes, you can obtain a court order for Fluffy; your dog is deemed to be an asset of the relationship.
Generally speaking, all assets are included although post-separation contributions can be considered in isolation by the Court and sometimes dealt with in a different manner.
There is no specific formula that is used to determine who retains what in a property settlement, however the Family Court considers the contributions of the parties and the future needs of the parties, amongst other things, when making a determination for property settlement. Family lawyers generally use the same legislative framework as the Family Court when they provide advice to parties.
There is no default position in relation to property settlement. Each case is determined on its own merits.
For further information, contact West Family Lawyers on +61 8 9380 9111. Also, book a confidential appointment on the Appointment tab above.