Move on from your relationship with the assets that you’re entitled to.
Separating from a partner can be emotionally and financially exhausting, especially if you’ve been deprived of assets that are rightfully yours.
That’s why you need the Gold Coast’s best property settlement lawyers standing beside you.
At Bell Legal, we’ve helped clients navigate property settlements since 1955.
We understand how important a fair division of assets is to moving on, and we know how to best represent your interests inside and outside the courtroom.
Your property belongs to you, and leaving a relationship shouldn’t change that.
Don’t walk away with less than you deserve.
If you’re in a relationship, the assets and liabilities you hold in your name may not necessarily be viewed as yours by the law.
Contributions to a relationship are not just financial – you or your partner might also contribute in other ways, such as looking after the children or the house.
Similarly, assets held under one partner’s name may have been earned or contributed to by both partners.
As a result, understanding who is entitled to an asset in a relationship isn’t as simple as looking at that asset’s legal owner.
If you’re thinking about separating from your partner, you’re probably also wondering if you’re entitled to some of their assets or vice versa.
The Family Law Act 1975 (Cth) sets out how property from a relationship may be distributed following separation.
The general principles are the same for determining a property settlement whether the parties were in a marriage, de facto relationship, or a same-sex relationship.
When looking to reach a property settlement, it’s normally better for you to reach an agreement with your ex-partner outside of court.
If you can’t reach an agreement, you may need to apply to the court for a property division order.
The court is required to make a decision that is just and equitable based on all the circumstances of the relationship, and will work through the following steps to understand those circumstances.
You and your partner will have to identify and value all assets, liabilities, and financial resources that either of you have an interest in at the time of the property settlement.
Both you and your partner must disclose to each other all relevant information and documentation – if you don’t, you could face serious consequences.
Once all your property has been identified, it must then be valued.
Values can be agreed between you and your partner or obtained from an independent expert.
Once all your property is identified and valued, the court then assesses contributions made to the acquisition, maintenance and improvement of the property by you and your partner during the relationship.
This includes financial contributions, such as income earned and money spent on improving the home, as well as non-financial contributions, such as any renovation work, and homemaker or parenting contributions made by either party.
Contributions made by you and your partner at the commencement of your relationship, during the relationship, or since separation will be considered by the court.
The court then considers whether there should be any adjustment to what you and your partner are entitled to.
In deciding any adjustment, the court looks at a large number of factors.
These include:
A good property settlement lawyer understands exactly what factors the court considers, as well as how much relative weight each factor holds in the decision-making process.
They’ll be able to present your circumstances in the most accurate light, allowing the court to make a fair division of assets.
Once all the relevant factors have been determined, the court will make a property settlement order.
The court’s role is to make sure both you and your partner receive a share of the relationship’s property that is just and equitable, so it considers the practical effects of the proposed orders, and not just the percentage outcome.
The court follows the same four-step process when making property settlements, regardless of whether a couple is married, or in a de facto or same-sex relationship.
Settling out of court saves you both time and money, and you’ll avoid the stress of going through the court system. Although it’s certainly possible to negotiate an agreement on your own, receiving advice from a property settlement lawyer can be extremely helpful.
You could be entitled to more than what you or your partner believe – even if you want to move on as quickly as possible, having all the facts before you settle means you won’t need to worry about losing valuable assets or being left with an unfair debt.
Relationship property includes all assets and liabilities held jointly or separately and includes property each partner acquired before, during or after the relationship has ended. It can also include property held in someone else’s name, or property held in a company or a trust.
The assets include property such as:
An assessment and evaluation of all relationship property is often the first step that needs to be taken in assessing a property settlement between separated parties.
The best way to protect your assets in a de facto relationship is to keep your finances completely separate. You can show the court your finances were separate by doing things like:
You should also consider more formal ways to protect your assets, like signing a binding financial agreement (BFA). If you and your partner sign a BFA that sets out what will happen if the relationship ends, you can both feel more comfortable knowing that your assets will remain yours, even if the relationship ends. A BFA that is entered at the beginning of a relationship is often referred to in American pop culture as a ‘pre-nup’ agreement.
You can find out more about BFAs and how to create them here.
The Family Law Act is the legislation that deals with the distribution of property following the breakdown of a relationship. It applies to all Australians, regardless of the state they live in (with the exception of Western Australia, which has its own family law Act). The Family Law Act deals with divorce, property settlement after marriage or de facto breakdown, spousal or partner maintenance, and issues relating to parenting arrangements after separation.
Domestic violence isn’t covered under the Act. Domestic violence laws are a state responsibility and are part of each state’s ‘criminal laws’. Queensland has specific domestic violence legislation, the >Domestic and Family Violence Protection Act 2012 (Qld), that sets out the law about domestic violence in Queensland.
An agreement about the division of relationship property is referred to in the Family Law Act as a ‘binding financial agreement’, or a BFA. A BFA is an agreement between two or more people that outlines how their property, superannuation, and spousal maintenance will be divided if their marriage or de facto relationship breaks down. The purpose of a BFA is to simplify property settlement during separation so the people who have signed the BFA don’t have to go to court. The Family Law Act outlines specific legal requirements that must be met to make a BFA binding on both partners in a relationship.
Dispute Resolution / Litigation / Estate Disputes / Employment Law / Business & Compliance / Family Law
E: mmiller@belllegal.com.auP: +61 7 5597 3366Read More
28 November, 2017Family Law
When a marriage ends and parties obtain legal advice about their rights and entitlements, especially about financial matters, they are often advised to finalise financial matters formally as soon as practicable to avoid a claim being made well after the marriage is over.
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In the wake of the recent High Court decision of Thorne and Kennedy [2017] HCA 49 much attention has been focused in Family Law circles about the continued use of Financial Agreements to resolve property matters.
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