Property Settlement Lawyers Sunshine Coast
Property Settlement Lawyers in Sunshine Coast
Owning a home is a keystone of wealth…both financial affluence and emotional security.
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 lawyers 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.
We’re here to support you
Property settlement by agreement
It’s not necessary for a separating 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.
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 difficult to resolve. A binding financial agreement, on the other hand, provides a legally enforceable written agreement that can effectively protect the interests of each party.
In order to make a legally binding financial agreement, each party must seek legal advice independently from a family lawyer that informs them of how the agreement will impact their rights, and whether it is in their interests to enter into it.
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 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.
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:
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:
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:
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:
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.
Property settlements should be made within:
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.