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Family Law Property Division
After separation, parties to a relationship are often faced with the difficult question of how they should divide the assets and liabilities of a relationship. Whether you were married or in a de facto relationship, the division of assets and liabilities after separation must be considered.
It is important to note that if you were married, you have until 12 months after a divorce order to make an application to the Court for a family law property division. If you were in a de facto relationship, you have 2 years after separation to make an application to the Court for a family law property division.
How can we reach a legal agreement?
Must I go to court for a property dispute?
Taking a matter to Court is generally a last resort in property disputes, with more favourable outcomes usually coming as a result of mediation and mutual agreement between parties.
For a property division to be binding and enforceable, it must be divided in accordance with the Family Law Act 1975 and then approved by the Court in the form of Court Orders.
If parties agree on how to divide their assets and liabilities, they can apply to the Court to have their agreement converted into Court Orders without actually having to step foot in a courtroom.
If parties cannot agree on how to divide the property, they can engage in legal negotiations and mediation, or court proceedings may need to be issued in order to resolve the dispute.
What assets and liabilities will need to be divided?
All assets, liabilities and superannuation belonging to each party to the relationship must be considered in the process of dividing property following separation. All of these assets, liabilities and superannuation are commonly referred to as the “asset pool”.
The family home, cars, debts, credit cards, money in bank accounts and businesses are all examples of the assets and liabilities which will need to be divided after a separation and form part of the asset pool.
Problems can arise where there is a dispute about whether a particular asset or liability (such as a personal loan from a friend or family member) should be included or excluded in the asset pool for division between the parties. Inclusion or exclusion of particular assets or liabilities can have an enormous impact on the final division, so disputes of this nature will require sound legal advice.
How is the property divided?
All family law property divisions must be determined to be just and equitable by the Court.
In considering whether a particular division is fair and equitable, the Court will have regard to the contributions made by each party to the assets and liabilities of the relationship and whether an adjustment should be made in the division to fairly account for these contributions.
Contributions do not just have to be financial, but can be non-financial, such as being responsible for the domestic duties and child-rearing during the relationship.
The Court will also look at the future needs of each party and whether an adjustment needs to be made to take into account these future needs. For example, does one party have a health issue that prevents them from working? Do they have the children of the relationship in their care more than the other party and therefore an adjustment needs to be made to allow for this? These are the types of questions the Court will consider in looking at the future needs of each party.
The process for dividing assets is complicated and will turn on the specific circumstances of each case.
It is therefore of the utmost importance that you get legal advice before finalising the division of the assets and liabilities of the relationship so that you can be certain of your legal rights and entitlements.
As discussed, there are various options available to you for dividing assets that do not necessarily result in going to Court. We can work with you to finalise your property division without having to step foot in a courtroom.