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property settlement


Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

Peter Magee
Kerry White
Michelle McDermott
Tony Iuliano
Elizabeth Hogg
Carla Stocks
Kate Marr
Nora Michael
Sarah D'Arcy
Justin Hine
Tijana Petkovic
Kepler Ryan
Louise Holland

At Armstrong Legal, we have an approachable team of specialist family lawyers who are highly experienced in relation to property matters, and can provide valuable assistance in determining how income, financial resources and debts are divided between you and your former spouse.

These decisions are important not only after divorce, but also if you are separated or are considering separating. These decisions are complex and stressful, and short-term arrangements can have long-term consequences. Armstrong Legal can help you to reach the best possible long-term outcomes in regards to you and your family's property.

Please note that as experienced Family Lawyers, we have found that property matters are often placed higher on the agenda to matters of parental responsibility and child support. Whilst we are committed to successfully assisting in all areas of Family Law, we stand firm in our belief that children must come before property, and that this is the only way to achieve the best outcomes for all involved. Therefore we encourage that matters concerning parenting and children are dealt with either simultaneously or prior to a property dispute.

Financial matters to consider after a marriage breakdown

  • How to divide assets such as real estate ( matrimonial / family home and any investment property ), shares, cars, jewellery, savings, furniture and effects (property / divorce settlement),
  • How to split superannuation,
  • Whether one spouse will provide financial support for the other (spousal maintenance),
  • What arrangements will be made in regards to the financial support of the children (child support)

This section provides information about how to go about the division of assets and the splitting of superannuation following a marriage breakdown.

Pre-Action Procedures

It is necessary that both parties attempt to reach an agreement outside of court, before filing an application for property orders. When applications for property orders are filed with either the Family Court or the Federal Circuit Court (Federal Magistrates Court), both parties are ordered to undergo "pre-action procedures" including participation in a dispute resolution.

In rare cases, such as situations involving urgency, family violence, refusal to negotiate or fraud, the Court may accept that it is not possible or appropriate for the pre-action procedures to be carried out.

If no agreement can be reached then an application for property orders must be put into either the Family Court of the Federal Circuit Court (Federal Magistrates Court).
An application must usually be made within 12 months of your divorce becoming final.

Armstrong legal do not only represent you in Court. We are committed to assisting you in the process of dispute resolution outside of court as well as the formalisation of agreements.

How to formalise a property settlement out of court:

Reaching a settlement out of court saves you and your family considerable time, stress and money.

There are two ways that your agreement can be formalised:

  • Financial Agreements
  • Consent Orders

Financial Agreements

These are similar to the well-known pre-nuptial agreement, but are signed before, during or after a marriage. Under Section 90D of the Family Law Act, financial agreements cover the following:

  • division of property, finances and debts after a marriage breakdown,
  • superannuation,
  • spousal maintenance
  • Other incidental issues.

For financial agreements to be legally binding, both parties must have signed the agreement and have received independent legal and financial advice before signing.

Consent Orders

Consent orders are a written agreement that are formalised and approved by the Court and thus are legally binding. To file consent orders, the neither you, nor your partner, need to go to court.

Consent orders can deal with the following:

  • The transfer or sale of property
  • The splitting of superannuation,
  • Spousal maintenance.

Consent orders are filed with the nearest Family Law Registry. The court must be satisfied that the orders are properly drafted and that the terms of the agreement are "just and equitable", before it will approve them.

Property Settlement in court

If no agreement can be reached then an application for property orders must be submitted to either the Family Court of the Federal Circuit Court (Federal Magistrates Court).

An application must usually be made within 12 months of your divorce becoming final.

The decision is then made through a court hearing. Both parties are expected to fully disclose their respective financial circumstances. A failure to make proper disclosure of a relevant matter is taken very seriously.

The Court considers four key factors in assessing property settlements

1. The Court will ascertain the net asset pool of both parties.
The net asset pool is the total value of all the assets owned by either or both parties. The net asset pool includes anything acquired before or during the marriage, as well as after separation.
In ascertaining the net asset pool, the Court will also consider other financial resources over which a party has influence, control or prospective entitlements.

Ascertaining the net asset pool can be highly complicated. Accurate valuation of assets requires that many factors are taken into consideration, such as issues regarding taxation, stamp duties, and the appreciation or depreciation of asset values.

2. The Court will assess the contributions from both parties (both financial and non-financial).
There are many types of contributions that may have been made by either spouse. The Court considers all of the following:

  • financial contributions
  • non-financial contributions (as a homemaker or primary carer of children)
  • gifts, bonuses and inheritance
  • initial contributions (assets attained before marriage)

3. The Court will assess the future needs of both parties. The Court takes into account many factors when deciding on the future needs of both parties. these include:

  • Age and health
  • Capacity to earn money
  • The property and assets of each party ( matrimonial / family home, investment property, shares, cars, jewellery, savings, furniture and effects)
  • New relationships (and new financial circumstances)
  • Future parenting responsibilities (care and support)

4. The Court will consider the practical effect of the proposed property settlement, and whether it is "just and equitable" to both parties. The decision is made taking into account all of these factors.

Legally, superannuation is dealt with separately to property orders. However, a Court is likely to take it into account when making a decision on property orders.

Superannuation

As set out in part VIIIB of the Family Law Act, superannuation is dealt with separately to property orders.

There are two elements to splitting superannuation: These are:

  • How to value superannuation interests (accumulated and potential).
  • How to split payments
Even though superannuation comes under a separate part of the Family Law Act, it is still taken into account in the overall property settlement, and is subject to the same principles, such that:

  • All superannuation is taken into account, regardless of when it was acquired (before or during marriage / after separation)
  • It is not automatically subject to a 50/50 split.
  • The Court will decide based on what is "just and equitable",

It is important to note that splitting superannuation does not enable you to access it any earlier. It is still subject to superannuation laws (accessible after retirement age).

Options for splitting superannuation

  • Financial Agreement
  • Consent Orders
  • Court Orders (in Court)

Determining the value of your superannuation

Before you enter an agreement, file for consent orders or apply for a court hearing, you will need to obtain the valuation information for your superannuation. This information can be obtained through communication with your superannuation fund trustee. To do this, you will need to provide the trustee with the following forms:

  • Form 6 Declaration (to show you are entitled to this information for this purpose)
  • Superannuation Information Request Form
  • Superannuation Information Form

These forms are available in a Superannuation Information Kit at your nearest family law registry, or from the publications section of the Family Law Courts website.

The valuation of superannuation is highly complex, and depends on many factors, including the type of fund. Some funds are still waiting approval from the Attorney-General's Department regarding the methods and factors used for valuing superannuation. This may affect the proceedings of your case.

How we can help you

Reaching a property settlement can be complex and stressful, whether it is carried out through a financial agreement, consent orders or in a court hearing.

Armstrong Legal are Australian Family Lawyers who specialise in property settlements and superannuation splitting. The advice you can expect from us is both personal and practical, being tailored to your needs. We will inform you of your rights and obligations in a way that you can understand and at all times put you in a position to make informed decisions about the conduct of your case.

We are able to assist you with both the formalisation of agreements where there is no dispute or in situations where things are hotly contested.

Valuations

Where you are able to agree as to the value of any assets and liabilities, you should do so, even if this means exchanging market appraisals or using online valuation services to assist you in doing so.

If you are unable to reach an agreement as to the value of any asset or assets, the Court may appoint a valuer to do so and you may be required to share the costs of obtaining that valuation report. Often such valuation reports fall outside of the range that is considered to be reasonable by the parties. This is particularly the case with household furniture which is valued at its second-hand value, such as that may be obtained in a garage sale or on eBay. All assets are valued at their second-hand value obtainable in the market, not their current replacement costs.


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where to next?

Taking the next step and contacting a family lawyer can be scary. Our lawyers will make you feel comfortable so you can talk about your situation. But first, ask yourself, Do I really need a lawyer?

Why Choose Armstrong Legal?

Contact Armstrong Legal:
Sydney: (02) 9261 4555
Melbourne: (03) 9620 2777
Brisbane: (07) 3229 4448
Canberra: (02) 6288 1100

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