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How do you settle property matters? A crucial part of relationship breaks is the division of assets. It’s essential to
February 21, 2024
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Property Settlement Lawyers Sunshine Coast
Owning a home is a keystone of wealth…both financial affluence and emotional security.
- Suze Orman
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At Shanahan Family Law we understand how much time and effort has gone into building and acquiring assets.
Divorce and property settlement can sometimes be complex and confronting. Our property settlement lawyers near me can reduce those barriers by making a detailed assessment of each party’s financial position, and the length of the relationship in terms of contributions both financial as well as non-financial contributions like parenting and homemaking.
Navigating the legal system of dividing property and financial resources can be overwhelming and confusing. Even more so for those unsure where to begin.
Property settlement by agreement
It’s not necessary for a separated couple to go through court proceedings to create a property settlement. In fact, the ideal course of action is for the couple themselves to come to a consensus on how assets will be divided through an agreement covering property matters.
Financial agreements
While a property settlement can be organised through an informal agreement, this is highly inadvisable, as informal agreements have no legal standing, even if they are set down in a signed and dated written document. Without the force of the law, any disputes that arise in the future will be challenging to resolve. A binding financial, legal agreement, on the other hand, provides a legally enforceable written agreement that can effectively protect the interests of each party.
Consent orders
Consent orders are another option for creating legally binding financial orders. Either spouse can apply to the court to have the financial terms they have agreed on be formalised by law. A consent order works differently to a binding financial agreement.
A financial agreement doesn’t need to be equitable to both parties. Provided you sought independent legal advice, you are free to enter into even grossly unbalanced financial arrangements. In contrast, a consent order requires that the agreement satisfy the family law act’s ‘just and equitable’ test.
This requirement for a just and equitable outcome is established in court proceedings through a four-step process.
To make legally binding financial agreements, each party must seek legal advice independently from family law solicitors that inform them of how the agreement will impact their rights and whether it is in their interests to enter into it.
Divorce Property settlement in Family Court
Under the family law act, the court uses a four step process to determine the just and equitable division of property between parties to a divorce:
- 1. The assets and liabilities associated with a relationship are identified;
- 2. Determine what contributions, both financial and non-financial, were made by each party;
- 3. Ascertain what requirements each partner will likely have in the future; and
- 4. Considering whether the proposed property settlement is just and equitable.
Identifying all assets and liabilities
The court must first determine what assets, liabilities and financial resources are to be considered in determining the property division. In essence, a list of everything that you and your former partner own is created. The court does not divide property based on who technically owns the asset. Family law functions differently to commercial law, and both spouses are taken to have a stake in the entire asset pool. The family home, for example, will be considered regardless of whose name the title is in. Assets and liabilities involved in a divorce settlement may include, but is not limited to:
- Bank accounts
- Superannuation Entitlements
- Real Estate
- Credit card debts
- Shares and other investments
- Vehicles
- Mortgages
If you own it, or part of it, it goes into the asset pool. This is also the case for debts and other liabilities. The court will also take the value of each of the assets as at the date you reach agreement or the date that you appear for a trial – not the date that you separated. This is very important as the value of the property owned changes over time.
Once all the property has been accounted for, the debts are subtracted from the assets to determine the net asset pool value.
Determine the financial and non-financial contributions of each party
Secondly, the court looks at the different contributions you each made during your relationship. There are many different types of contributions such as:
- Financial contributions such as income or assets that you or your partner brought into the relationship;
- Non-financial contributions such as unpaid work in a family business or an owner builder undertaking to do renovations to the property;
- Contributions to the welfare of the family, such as the day to day running of the household, and care of children.
Each relationship is made up of very different contributions and it is for this reason that the court will look at each relationship on its own facts. There is no hard and fast rule.
Consider the future needs of each party
After the family court has looked at how you received the property, will then take into account what future needs each party will have. There are a variety of factors that may come into play, including:
- The age and state of health of each party;
- Your children, their age, their needs and who will be caring for them;
- Your and your partner’s financial circumstances, and how any income may be affected after the property settlement;
- The effect that the marriage or de facto relationship has had on you or your partner’s ability to earn an income and obtain employment;
- Any spousal maintenance or child support that will need to be paid;
- Any other factors the court considers relevant.
Determining whether the proposed settlement is just and equitable
The final step is for the court to decide whether the final settlement to be applied is just and equitable to both parties. This will be on the basis of the contributions made by each spouse and all other relevant factors to your case. If the court finds that the settlement is unfair to one side, it must reevaluate and formulate a different settlement.
Time limits under the family law act
There is a strict time limit set out by the law concerning when property settlements should be made, while settlements can be made at any time prior to the end of a relationship breakdown.
Property settlements should be made within:
- 2 years after the dissolution of de facto relationships;
- 12 months after the finalisation of a divorce.
For divorcing couples, this entails that any contributions made to a property pool between the date of separation and a divorce order taking effect will be considered in a property settlement.
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Even a joint divorce application can be daunting, let alone when you’re considering filing for a divorce online. Perhaps you have questions about submitting your application to the courts, or you aren’t sure where to start. We’re here to help guide you through the process.
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Luke Shanahan
Principal Solicitor
As principal solicitor of Shanahan Family Law in Maroochydore, Luke Shanahan is a reliable and experienced Sunshine Coast family law expert, offering compassionate support to people and families experiencing the most difficult circumstances through a divorce or separation. Whether you’re seeking help with child support, parenting matters, divorce, property consent orders, financial agreements, domestic violence, joint applications for divorce, or the preparation of DIY affidavits and consent orders, Luke can help.
As sad as it is to see couples and families split, he feels privileged to be able to help his clients find a better life through their family law services. “I believe we all deserve a second chance at finding a better life, and if this is through a divorce, then we will do everything we can to ensure our client’s success through whatever means.”
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Navigate Your Property Settlement with Confidence on the Sunshine Coast
The property division during a separation or divorce can be overwhelming, leaving you unsure where you stand. Shanahan Family Law on the Sunshine Coast is here to guide you through the property settlement process with clarity and confidence. Our seasoned experts will work with you to understand your unique situation, ensuring your rights are protected and you receive a fair and equitable distribution. Don’t let uncertainty take over your peace of mind. Contact us today to secure your financial independence and start the next chapter of your life on solid ground.
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Download Our Property Settlement Guide
Get expert advice on navigating your property settlement with ease and confidence.