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Property Settlement

Property Settlement Mildwaters Lawyers Kadina South Australia. Image: All Packed Up by Michael Zimmer via Flickr

One of the most contentious aspects of family law is property settlement.

Sometimes, you and your former spouse or de facto partner might have agreed on how to divide your property, including all your assets and debts, without any court involvement.

In this case, some former couples go one step further and get their agreement formalized.  This is a wise move as it means that the agreement is binding and prevents one of the parties coming back for “another go” after the pool of property has been divided.

At the other end of the spectrum, when no agreement can be reached amicably, you can apply to a court for financial orders, including orders relating to the division of property and allocation of the responsibility for payment of debts.

Seeking property settlement advice early is essential

You might be surprised to know there is no set formula that determines how a court should divide the assets and liabilities of a former couple, which is why getting legal advice from a firm like Mildwaters Lawyers is so important.

We can advise you on ways to approach your property settlement, based on our understanding of the law and the experience that we’ve gained over many years in legal practice.

You may only need one appointment with us to gain an understanding of your legal position and to enable you to approach negotiations with your former spouse with knowledge of your legal entitlements.

If you need more help than that, then we are pleased to offer a full range of property settlement services to assist you to get the best result that you can in all of the circumstances.

Is there a time limit for applications to the court for property adjustment?

If you were married, applications for property adjustment must be made within 12 months of your divorce becoming final.

If you were in a de facto relationship, your applications for property adjustment must be made within 2 years of the breakdown of your de facto relationship.

If you do not apply within these time limits, you will need special permission of a court. This is not always granted.

What sorts of things affect a property settlement?

There are many factors that affect how property might be divided between a former couple and these factors are set out in the Family Law Act.

(1)   Contributions

The first consideration for a court is the respective contributions made by each of the parties.  These contributions involve both financial and non-financial contributions and contributions before, during and after the relationship.  The types of contributions that might affect a property settlement include:

  • a greater financial contribution at the start of the relationship by one of the parties because they owned more assets which were later used as a springboard to improve the financial position of the parties
  • an inheritance received by one of the parties during the relationship that was contributed to the pool of assets owned by the parties
  • extensive work by one of the parties to maintain and improve the home in which they lived or an investment property or properties by conducting renovation work such as painting, landscaping and construction of improvements on the properties
  • one of the parties doing a greater share of the domestic duties and child rearing duties
  • one of the parties making an additional income contribution over and above their usual full time work by way of managing an investment portfolio or gaining income from another source after hours through a leisure activity such as painting and producing marketable artwork
  • a greater financial contribution since separation from income or some other means – and this contribution could be significant particularly if the parties have been separated for quite some time and left their property settlement unresolved.

(2)   Other factors that affect a property settlement

The second consideration for a court are the other factors that they must take into account and which are listed in the Family Law Act.  These factors include:

  • the age and state of health of each of the parties
  • the income, property and financial resources of each of the parties and the physical and mental capacity of each of them for  employment
  • whether either party has the care or control of a child of the marriage who is not yet 18
  • the commitment of each of the parties to maintain themselves, the children and anyone else
  • the eligibility of either party for a pension
  • a standard of living that in all of the circumstances is reasonable
  • the extent to which an order might be able to increase the earning capacity of one of the parties by giving them the ability to obtain further education or training
  • the duration of the marriage
  • the financial circumstances of any cohabitation with a third party
  • bankruptcy or the ability of creditors of the parties to be repaid where relevant
  • the terms of any binding financial agreement between the parties
  • child support that is being paid and will be paid in future by one of the parties to the other.

Other things to consider

There are other things to tidy up when considering property settlement issues too.  In particular, you should direct your attention to:-

  1. reviewing your Will if you have one or having one prepared if you don’t have one already to ensure that the property that you end up with after your property settlement doesn’t go back to your former spouse if you pass away
  2. reviewing your superannuation and life insurance nominations to make sure that you remove your former spouse and nominate your children or such other beneficiary that might be more appropriate now that you are separated
  3. removing your former spouse as the contact person in case of emergency at your local doctors or other health professionals
  4. informing your workplace and service providers that it is no longer appropriate to provide your personal information to your former spouse.

How we can help

Most people that separate are in unchartered territory and don’t know where to start.  That is where we can help.  We offer a variety of services that relate to sorting out property settlements from giving initial advice and setting people on the path to agreement to managing court proceedings from start to finish.

Contact us today, so we can help you take the first steps toward getting a suitable settlement.

 

Image: All Packed Up by Michael Zimmer via Flickr. CC BY-SA 2.0

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