Even in amicable breakups, it’s important to seek legal advice for property settlement. Our family law specialists will ensure that your settlement is completed efficiently and according to the law, safeguarding you from further actions.
What is a property settlement?
A ‘property settlement’ is terminology used to refer to separating parties to either a marriage or de facto relationship whether heterosexual or same sex, dividing their assets under the Family Law Act, 1975.
How do you work out a property settlement?
The Family Law Act sets out the legal requirements of what needs to be considered. It involves looking at your particular circumstances and assessing your entitlements and taking into account the assets and liabilities of your relationship.
This will involve looking at:
- The property that you own
- The debts that you and your partner owe
- Any superannuation that either party has
- Assessing the contributions that have been made by you and your partner during the relationship, including financial contributions and non-financial contributions such as undertaking domestic duties or caring for any children of the relationship
- Looking at each party’s future needs and taking into account whether there needs to be an adjustment to assist the person that has ongoing care of children, or who may earn less than their former partner or have other particular health needs that need to be reflected in the amount that is received out of the property settlement.
Are there any time limits?
If you have been divorced already, you have 12 months to start a property settlement from the date of the divorce order. If you are in a de facto relationship, then any court proceedings must be commenced within two years of the breakdown of the relationship (the date of your final separation).
Do I have to go to court?
There are a number of different avenues available for you to come to a property settlement agreement. At Kells we work with you to develop an approach that best suits your individual needs.
The Family Law Rules require you to explore all possible avenues to resolve your matter by way of negotiation, conciliation, counselling, collaborative law and Mediation, if applicable.
However sometimes parties are not able to negotiate their own settlement and it is necessary to commence proceedings in court. Most cases settle out of court. However there may be a need for the court to help you negotiate with your former partner to make a final decision if you cannot agree on what is a fair division of the assets.
How long will it take?
We try to come to the most efficient and quick settlement wherever possible.
If you and your partner have already discussed the division of your assets, and provided that division is fair and reasonable in all the circumstances, then we can document and formalise that agreement and file that agreement with the court or help to prepare a financial agreement which is not filed in the court.
If an agreement cannot be reached and your case proceeds to a court hearing, we will keep you informed of the timeframe that is involved in your matter.
What happens if we cannot reach an agreement?
If it becomes necessary to go to court, we will prepare the court papers and arrange to have them delivered to your former spouse, or to their lawyer. Your spouse will have time to prepare their court documents in response.
You may already have received court papers from your spouse. If you have, you should bring them to us immediately so we can advise you further.
Will I be able to have settlement discussions?
We will have settlement negotiations with your former spouse and their lawyer wherever possible to avoid court action and to reduce the legal fees in your case. You will be advised when settlement offers are made by your former spouse prior to commencing proceedings or we will advise you when you should be making an offer of settlement. If it’s not possible to negotiate an agreement, you will need to go to court.
Can I attend a Mediation?
Mediation can take place either before court proceedings are commenced or after court proceedings are commenced. If your case is not able to be settled by negotiation, the court will order that you and your spouse either attend a private Mediation or see a Registrar of the court for a Conciliation Conference.
What is the purpose of a Mediation or Conciliation Conference?
The aim of a Mediation or a Conciliation Conference is to try to reach an agreement between you and your spouse. If an agreement is reached, it will be written down and signed by you and your former spouse. If the agreement is reached at a Conciliation Conference, the Registrar will make final orders and your case will be resolved. If you reach an agreement at a private Mediation, then the lawyers will prepare an agreement that can be signed and then lodged with the court.
Is an agreement reached at Mediation binding?
Once you have reached an agreement at Mediation it will be prepared in a formal agreement that can be lodged with the court. Once it is filed with the court and approved it has the same effect as if a Judge had made the decision for you and your former spouse.
What if we cannot reach an agreement and need to go to a hearing?
Your case will be heard in either the Family Court or the Federal Circuit Court. If you have to give evidence we will be in court with you. At the end of the hearing, the Judge will make a decision. The Judge’s decision is final.
How do I protect my rights?
It may be necessary to act quickly or to protect your assets and property. You need to think about the possibility of assets being sold or money being taken out of bank accounts without you knowing.
If you think your matter requires urgent attention contact us today to arrange an appointment.
How much will it cost?
At Kells we offer an initial conference at a discounted rate of $250 with one of our specialist lawyers. You will be provided with advice in relation to your specific issues and we will point you in the right direction for the best outcome for you and your family.
We provide you with an outline of the likely cost of your matter at the start of your case and will regularly update you throughout the course of your matter.
We are committed to keeping your costs down and we’ll explain to you the cost of each day of your case as well as any alternatives available to you to keep your costs down.
Will I be kept informed?
You will be regularly notified in writing of any updates in your case as your matter progresses. We understand that separation can be very difficult and we are committed to ensuring you are consistently updated as your case progresses.
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