Whatever your feelings about how your property should be divided, it makes sense to know what might happen should the matter end up in court. If your affairs are straightforward we can give you a good idea of what would be a fair thing at an initial consultation. If they are more complex, we will assess the position and give you a written analysis. You can either share our advice with your spouse or keep it in your back pocket.
Keep lines of communication open
When you know where you stand, formulate a written proposal and discuss it as rationally as possible with your partner. Try and keep the legal processes out of it at this stage: there is nothing like a lawyer's letter to raise the emotional ante. If you come to an agreement - congratulations!
Formalise your agreement
Once you have reached an agreement with your partner it is important that it be formalised. In most cases we recommend you formalise your agreement by way of Family Court Consent Orders. The process is generally quick and straightforward. The Court provides a form for this purpose which requires certain background information about the parties and their financial circumstances. Annexed to the application is a minute setting the terms of the agreement you have reached with your partner.
The advantages are:
-
if real estate is to be transferred between you and your partner, you will only pay nominal transfer duty (formerly known as stamp duty); and
-
if both parties accurately disclose their financial affairs, there is virtually no chance of any further comeback.
Without court approval either party can renege on the deal.
What if you can't or don't want to negotiate on your own?
The pre-action procedures in the Family Law Rules provide that each prospective party to a case in the Family Court is required to make a genuine effort to resolve the dispute before starting the case by:
-
participating in dispute resolution, such as negotiation, mediation and counselling;
-
exchanging a notice of intention to claim and exploring options for settlement by correspondence; and
-
complying, as far as practicable, with the duty of disclosure.
We are here to help but not to waste your money. Together with you we will formulate a reasonable settlement proposal that complies with the pre-action procedures, and put it in writing to your spouse.
At this point we may also suggest you explore mediation. There are links to various mediation service providers on our Family law home page.
If your proposal is accepted you have the option of consent orders (see above).
If your proposal is not accepted we generally recommend that you commence proceedings in the Family Court immediately for the same settlement.
Should you go straight to Court without further negotiation?
We are very keen to keep you out of Court - but we also want to save you money. Extended negotiations in these circumstances are inevitably expensive and time consuming and may end in Court proceedings anyway.
The Family Court has pre-trial procedures designed to encourage you to resolve your differences by negotiation. In fact, the great majority of all actions are resolved before trial. The Family Court's web site is a useful source of additional information, as is our litigation page.
How much is it going to cost?
Our charges are based on time and depend on the complexity of your affairs and the attitude of your spouse.
We suggest that you start with an initial consultation at which we can give you a reasonable idea of the likely future charges.
-
Separation occurs when you cease to live together as husband and wife or as de facto partners.
-
The first step in any property settlement is to identify and value the asset pool - ie all of the assets, liabilities and resources of the relationship. This includes all assets, liabilities and resources in your name, your partner’s name, joint names or held by a company, trust or other entity or structure which is controlled by either party.
-
In general terms the facts considered by the Family Court in determining a fair division of the assets of the relationship fall into two broad categories.
-
In the first category are the contributions made by each party to the asset pool whether financial or non-financial and whether directly or indirectly. For example, the Court will consider the assets, and liabilities of both partners at the start of the relationship, the income of both parties during the relationship, the extent and timing of any lump sum amount received by either party by way of an inheritance, windfall or otherwise, other contributions to property such as maintenance or renovation and contributions as homemaker and parent. The Court will also consider contributions made after separation.
-
The second category of factors, in very broad terms, relate to the future financial needs of each party. Lawyers often refer to these factors as the “section 75(2) factors”, referring to the relevant section of the Family Law Act. For example, we look at the arrangements for care of any children or other dependants, the income of each party and their capacity for employment, the age and state of health of both parties and child support obligations.
-
The size of the asset pool will also have a bearing on your legal position. As a general rule, the smaller the asset pool, the more significant the section 75(2) factors will be.
-
You don't have to involve the Family Court to sort out your property; you don't even have to have a lawyer, but the Court can overrule a private arrangement on the application of either party.
If you have previously made a Will, chances are you've left everything to your partner. If you don't have a Will the law assumes that he or she is your major beneficiary until you are divorced. We offer a fixed-price service for Wills.