The Family Law property settlement experts

Mediation can be a great way for you to resolve your dispute about the distribution of assets and achieve a quick property settlement.

Unless there is a history of family violence (which can include coercive and controlling behaviour), you should attempt to resolve your dispute about the distribution of assets at a mediation. We have a panel of experience mediators who all specialise in Family Law, so their eyes won’t glaze over when discussing contributions and any adjustments in favour of one party required, owing to the greater future needs of one party.

If you reach an agreement at mediation (or before mediation), we can assist you to formalise your agreement with an Application for Consent Orders seeking Property Orders or a Binding Financial Agreement.

1.  An Application for Consent Orders can be filed with the Federal Circuit and Family Court of Australia, asking the Court to make Orders that reflect any agreement reached. There is no requirement to attend Court.If there are children of the relationship and agreement has been reached in relation to parenting arrangements, both the property and parenting orders can be made in the same Application for Consent Orders.Once the Orders are made, they can be enforced.
2. A Binding Financial Agreement can be prepared reflecting any agreement reached. Both parties must have legal representatives sign a Certificate of Independent Legal Advice for this option.You can not include any parenting agreement in a Binding Financial Agreement.

When parties separate, they are required to exchange full and frank disclosure relating to their property and financial recourses.

Exchanging financial disclosure means that both parties can be satisfied that they have each disclosed all of their assets and financial recourses and that nothing has been left of the balance sheet/property pool when negotiating a settlement.

Sometimes agreement can’t be reached because the other party has not complied with their obligations of financial disclosure, or maybe they are being unrealistic about what they should receive in the settlement, in which case you can go to Court.

The Family Law Act defines a de facto relationship as two people who are not married, not related and are living together as a couple on a genuine domestic basis.

If there is a dispute about whether parties were in a de facto relationship, the Federal Circuit and Family Court can determine this dispute by having regard to some or all of the following circumstances:

1. The nature and extent of any shared living arrangements.
2. Whether others (such as friends and family) thought you were living together as a couple.
3. The extent to which you had shared finances, such as holding joint bank accounts or sharing living expenses.
4. The mutual commitment of each party to a shared life. Were you exclusive?
5. Whether you have any children together or assisted one another with the care of children from a previous relationship.
6. Whether you slept in the same room or maintained a separate space.
7. Whether you made future plans and goals. For example, were you jointly saving a deposit for a home?

You need to be in a de facto relationship for 2 years, to bring an application for a property settlement, unless one of the exceptions apply. You should obtain legal advice about whether any exceptions are applicable to you as early as possible.

Parties have an obligation to provide spousal maintenance to their former spouse. A party will only be entitled to receive spousal maintenance from the other if:

1. The party has a need for spousal maintenance because they are unable to support themselves without an income tested pension or benefit; and
2. The other party has the capacity to meet the others financial need (in whole or in part).

It is important to note that Spousal Maintenance is not Child Support because it is about providing financial support to the former spouse, as opposed to financial support for any children of the former relationship.

Of course, any Child Support Assessment and provision of child support will be relevant to whether someone has a need for Spousal Maintenance and the other persons capacity to meet such need.

If agreement is reached in relation to spousal maintenance, it can be formalised in two ways:

1. An application for Consent Orders can be filed with the Federal Circuit and Family Court of Australia asking the Court to make Orders that reflect any agreement reached. There is no requirement to attend Court.; or
2. A Binding Financial Agreement can be prepared reflecting any agreement reached. Both parties must have legal representatives sign a Certificate of Independent Legal Advice for this option.

Legal advice should be sought as early as possible about whether you would be entitled to Spousal Maintenance.

An inheritance received by you or your former spouse will normally be included in the property pool. Any inheritance received by you is likely to be considered a contribution by you. Of course, the importance or “weight” attributed to this contribution will depend on several factors including, the value of the inheritance, when it was received, the length of the relationship and how the inheritance was applied.

You should seek legal advice as soon as possible to understand the importance of any lump sum contribution made by you.

It is becoming increasingly common for parents to provide money to assist with a deposit for a house, renovations and/or living expenses.

If the funds are a loan from your family, then, you should obtain legal advice and ensure any loan is properly documented.

The dispute about whether funds advanced from family should be considered a loan and included on the balance sheet as a liability to be repaid, is a common one. When determining such a dispute, the court will consider various factors. For example, the terms of any loan agreement including any interest payable, the repayment terms and whether any payments have been made in reduction of the loan.

If any funds from your family are a gift, this is likely to be considered a contribution by you. Of course, the importance or “weight” attributed to this contribution will depend on several factors including, the value of the gift, when it was received, the length of the relationship and how the gift was applied.

In most cases, yes!

Final Orders or a Binding Financial Agreement has the effect of ending the financial relationship between you and your former spouse. This means you can each move on without worrying that you will have to deal with a claim later.

Here is a thought. Have you purchased a lottery ticket recently? What happens if you win, and don’t have Final Orders or a Binding Financial Agreement in place? (It happens more than you think).

Any lottery winning would form part of the property pool and be available for distribution. You would follow the 4-step process, which includes assessment of contributions and any adjustments owing to future needs.

A property settlement can affect your former spouses right to make a claim over your estate, should something happen to you.

The above are just some of the many reasons a property settlement is a good idea, even if you don’t have a lot of assets.

You should obtain legal advice as soon as possible to ensure your future is protected and so you can move on without worrying that you will have to deal with a claim later.

If agreement cannot be reached (or if the matter is urgent, leaving no time for mediation or negotiation), an Initiating Application may be filed with the Federal Circuit and family Court of Australia seeking interim and final property Orders.

Interim Orders can include orders for exclusive use of a property, for a portion of savings/cash recourses to be distributed and/or Spousal Maintenance.

If proceedings are required, you can have confidence knowing that we have the knowledge and experience to represent you in Court and achieve the best possible outcome for you and to secure your financial future.

Arbitration and an alternative to having your property hearing determined by the Federal Circuit and Family Court of Australia. Arbitration is only an option if all parties agree and if the hearing will be in relation to property only.

There are some benefits to Arbitration:

1. The parties will nominate their Arbiter who acts as their decision maker. Many Arbiters are very experience family law specialist solicitors and/or retired Judges;
2. An Arbitration Hearing can be held in a matter of weeks after appointing the Arbiter, as opposed to 12 to 24 months wait before the Federal Circuit of Family Court of Australia; and
3. Parties have greater control over the way the hearing will be run. For example, what evidence will be required and when.

Once an Arbiter delivers their decision, the decision is registered and becomes binding and, just like final orders, can only be appealed on an error of law.

Whilst there is some additional cost in appointing an Arbiter, this cost is usually shared equally between parties and is often less than it will cost parties in numerous procedural hearings and correspondence over a period of 12 to 24 months, whilst parties await a final hearing before the Federal Circuit and Family Court of Australia.

Family violence can take many forms and can include assault, sexually abusive behaviour, stalking, derogatory taunts, intentionally damaging or destroying property, denying a family member financial autonomy, withholding financial support, depriving a family member of his or her liberties, and/or exposing a child to any of the above behaviours.

If you have recently experienced family violence in your relationship, you should seek legal advice as soon as possible, about the effects of family violence in your family law matter.

If a party has been the victim of family violence throughout a relationship, the Court may attribute more weight to the contributions of this party, because their contributions were harder than they would have been without the presence of the family violence.

If one party destroys property and diminishes that value of the property pool, this conduct can be considered by the Court when assessing the contributions (financial and non-financial) between the parties.