Property settlement entails dividing both parties’ property. In regards to family law, this process is commonly used by which a married or de facto couple divides their assets and liabilities. And because each relationship is unique, it is critical to seek expert advice.
Read on as we discuss these property settlement facts you need to know today.
Property Settlement for Divorcing Couples
Negotiating a property settlement is critical; otherwise, either party may later claim property settlement. In this case, the property is valued at the time of the proceedings, not during the separation. Even after a divorce, the other party’s debts may be included in the property pool. This includes superannuation, savings, joint assets, and even extreme circumstances like winning the lottery. Payments on mortgages, personal loans, and credit cards, in addition to physical property, must be considered.
Property settlement is an important step in the divorce process because it brings your financial relationship to a close. If the agreement is made binding and enforceable, or if the Court enters property settlement Orders, neither party may pursue further property settlement claims.
The Process of Property Settlement
You may file for a property settlement if you recently divorced or ended a de facto relationship. A Property Settlement, however, is not dependent on the outcome of a divorce. This can happen soon after a divorce.
It is best to think about property settlement as soon as possible. Separating parties must file for Property Settlement within two years of their separation or within twelve months of the effective date of a divorce order, unless there are exceptional circumstances. If a Property Settlement cannot be reached within these time frames, the opposing party may file an ‘out of time’ application, putting your case at risk.
While many people believe that Property Settlements automatically indicate a 50-50 half of assets, there is no Australian law or presumption that requires an equal division of assets. Property settlement is always at the Court’s discretion, which takes into account a number of factors, such as:
- What each party contributed
- Parenting and housework contributions
- The length of the relationship
- Non-monetary donations
- Individuals’ current and future needs
The longer the relationship, the more likely it is that the contributions of both parties will be considered equal, but each case is unique and different.
When it comes to property settlement, whether you reach an out-of-court agreement or must litigate, the law is the same. This essentially entails the following:
- Identifying the legal and equitable rights of both parties (which may include assets held in the name of another person or entity);
- Contributions made by each party to the property pool and the relationship, both financial and non-financial;
- Taking into account your health, your partner’s earning capacity, and the care of any minor children; and
- Examining the proposed settlement’s structure and monetary outcome for fairness and adequacy.
In the event of an Opposing Ex-partner
On rare occasions, one party will request a property settlement and the other will refuse. Your family lawyer has two options in this situation: write to the other party or suggest mediation. If this is refused, an application for property settlement may be made against their wishes. The Court will then decide how to divide assets and liabilities, as well as superannuation.
Establishing Intent for a Property Settlement
The quickest way to complete a Property Settlement is to begin the process as soon as possible. Work with a firm and a family lawyer who can draft a letter to convey your agreement to the other party after informing you of your rights. Your legal counsel must then perform every effort to avoid going to court.
Your legal counsel must also assist you in filing a lawsuit if mediation fails to resolve the matter amicably. Because Property Settlements are intended to be negotiated outside of Court, the vast majority of cases do not proceed to trial.
Divorce and separations are emotionally taxing situations for both parties and their loved ones. Thus, it’s crucial to seek immediate legal assistance to make the process easier for anybody who is involved. After all, Property Settlement is a long process that involves money, negotiations, and, ideally, civil conversations.
Are you looking for family lawyers in Australia? Springfield Legals is a law firm that specialises in family law matters. Give us a call today for a consultation!