At ABMS LAWYERS, our approach to property settlement is to resolve matters in a cost effective and timely manner whilst keeping what you value most at the forefront- financial resources and relationships. We have experienced Family Lawyers can provide valuable assistance in determine how assets and financial resources and debts and liabilities are divided between you and your former spouse. These issues and decisions are important and cannot be taken lightly, more so when parties are divorcing.
Some financial arrangements can be complex and can give rise to tax implications in certain situations. That can affect a spouse’s financial position. Care must be taken in advising clients and dealing with the assets generally and you require proper and timely advice to minimise the implications of your financial arrangements.
If you are separating or divorcing, you may be stressed about short-term or long-term decisions affecting your financial future when you are separating or divorcing. The consequences of such decisions cannot be under estimated as they can be far reaching not just for the person concerned.
Property Settlement in Court
If an agreement is not reached and one party ends up making an application to court for property Orders, it does not mean a matter can’t be settled whilst parties are in Court. A matter can settle at any time before trial. An application for property settlement must usually be made within 12 months of your divorce becoming final.
The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously by the Court and a party who fails to do so may be punished by the Court.
ABMS LAWYERS can assist you in complying with your disclosure obligations in property settlement.
How the Family Court Assesses Property Settlement
When a Court is asked to consider property settlement, the Court looks a criterion which must be satisfied. A court considers four key factors in assessing property settlement.
1. The Court will ascertain the net asset pool of both parties.
The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the marriage, as well as after separation. In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements. Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values. Where a couple agrees to the value of any assets and liabilities, they should do so as it can be extremely cheaper for them and they do not need to spend money on paying the fee for valuers to value their property. Sometimes, exchanging market appraisals or using online valuation services to assist in ascertaining values can be enough.
If you are unable to reach an agreement as to the value of any asset or assets, the Court may appoint a valuer to do so and you may be required to share the costs of obtaining that valuation report. Often such valuation reports fall outside of the range which is considered to be reasonable by the parties. There are rules that govern the appointment of a valuer if the parties themselves wish to do so. All assets are valued at their second-hand value obtainable in the market, not their current replacement costs. This is may be the case with household furniture which is valued at its second-hand value like the prices of items sold on Gum Tree or at a garage sale or on eBay.
2. The Court will assess the financial and non- financial contributions made by both parties, during the relationship and to a certain extent after the breakdown of their relationship.
There are many types of contributions that may have been made by either spouse:
non-financial contributions such as homemaking or looking after the children full-time
gifts, bonuses and inheritance
The court also considers initial contributions of a spouse before the commencement of the relationship or marriage.
3. The Court will assess the future needs of both spouses.
The Court takes into account many factors when deciding on the future needs of both parties which may include the following:
Age and health of the spouses
Their capacity to earn money
The property and assets of each spouse including the use of the family home, investment property, shares, cars, jewellery, savings, furniture and personal effects
New relationships which may contribute an improvement in new financial circumstances
Future parenting responsibilities and taking care and supporting children
4. The Court will also consider the practical effect of the proposed property settlement and whether it is "just and equitable" to both parties in their given situation.
The decision is made whilst taking into account all of the above factors.
It is important to note that superannuation is dealt with separately to property orders. However, a Court is likely to take it into account when making a decision relating to property orders. The valuation of superannuation is highly complex, and depends on many factors, including the type of fund. Some funds are still waiting approval from the Attorney-General's Department regarding the methods and factors used for valuing superannuation. This may affect the proceedings of your case, so you need to consider your position carefully.
Time Limits in Property Settlement Matters
If you are already divorced and have not yet formalised a property settlement, it is important that you obtain legal advice as soon as possible. It may be necessary to file an Initiating Application with the family law courts to preserve your rights, even if you are negotiating with the other party and hopeful that agreement can be reached.
There are different time limits for bringing proceedings under the Family Law Act (FLA) depending on whether you were married or in a de facto relationship. For parties to a de facto relationship the time limit for filing an application for property proceedings is two years after separation. The date of separation therefore becomes significantly more important when a de facto relationship breaks down. The date of separation is not always clear. For example, if you have lived under the same roof after separation or had periods of reconciliation there may be some confusion or disagreement as to when separation actually occurred. Therefore, you should obtain legal advice about what constitutes separation under the Family Law Act.
For married couples the time limit for filing an application for property proceedings is one year after a divorce order takes effect. Because parties must be separated for a period of 12 months prior to applying for a divorce, there will be a minimum period of two years before the limitation date. This provides parties to a marriage a clear timeframe.