The idea of speaking to (and paying for) a family lawyer can be terrifying. For a lot of people, the only time they have ever hired a lawyer was to buy or sell a home. However, when it comes to Family Law, speaking to a lawyer at the right time can save you time, money,
We will help you to understand your entitlements, assist you to negotiate and, if necessary, provide you with quality representation in any Court proceedings.
A Family Law property division involves the division of your and your ex’s property and debts after separation so that you can move on and be financially independent of one another. How much of the property and debts each of you is entitled to depends on how much each of you has contributed to the property and the family, and also who has the greater future needs. It is very common that a separating couple will each take an equal share of the property and debts and will sort out between them who will keep what. But this is not always the case.
Why Early Legal & Financial Advice is Critical
The things you do at the very beginning of your family law property matter can have a profound impact on the way your matter runs. You need to know early on what your rights and obligations are under the Family Law Act so that you can put yourself in the best position to achieve a favourable outcome.
Before you begin to negotiate a Family Law Property Division it is important to know what you can and cannot achieve in terms of a final Property Division. For example, if you would like to retain the former matrimonial home, you need to ascertain your borrowing capacity. Additionally, you need to be aware of any taxation issues, including capital gains tax liabilities, that crystalise as a result of a distribution of your property pool.
We can refer you to one of our trusted financial advisors and together we can identify and advise you about the best way to structure your Family Law Property Division.
Interim Property Settlements
Often separating parties do not have immediate access to money, despite the fact that there are funds available. You may have sold a property and the funds are being held in your Conveyancers’ Trust Account; or perhaps your savings are being held in a bank account in your ex-partners’ sole name.
In these situations, we can assist you to negotiate an interim or ‘partial’ property settlement on your behalf. If you are unable to reach an agreement with your ex-partner, we can assist you to file an application for an interim distribution of funds and advocate for you during any proceedings.
There are important time limits to bear in mind when considering an Application for a Family Law Property Division and/or Spousal Maintenance. These are:
- For a marriage – 1 year from the date a Divorce Order becomes final.
- For a de facto relationship – 2 years from the date of separation.
There are limited exceptions to the time limits, so it is best speak to your Family Lawyer if you think you have run out of time.
Commencing Court proceedings does not, however, mean that your Property Division will be determined by a Court. Once Court proceedings are started there will still be ample time to negotiate a Property Settlement which can then be formalised by Consent Orders. Mediation of property disputes will also generally be required before a Court determines any Application for Property Orders.
Simply put, spousal maintenance are payments which are made by one party to the other.
The first step in establishing whether or not you may be entitled to spousal maintenance payments is to overcome the ‘threshold test’ which asks two (2) questions:
- Are you unable to ‘adequately support’ yourself on your income; and
- Is the other party ‘reasonably able’ to pay you?
If it is determined that you are not able to ‘adequately’ support yourself and that the other party is ‘reasonably’ able to pay you, then the Court will give consideration to the extent to which your ex-partner should reasonably be expected to support you, i.e. how much should they pay you? This will ultimately involve an examination of your living expenses.
Of course seeking spousal maintenance does not necessarily need to involve going to Court, depending on your circumstances and the attitude of your ex-partner, we may be able to negotiate spousal maintenance payments on your behalf.
Does a Property Settlement have to go to Court?
No, many separated couples reach an agreement about dividing their assets by themselves, or with the help of Family Lawyers without going to Court.
If you and your former partner are able to reach agreement an experienced family lawyer can formalise this for you.
If you are unable to reach agreement new Court rules require parties to attend mediation. Mediation is a cost-effective process where parties can discuss and negotiate a property settlement with the assistance of a qualified mediator and their legal representatives.
If you are unable to reach agreement through mediation you can then commence court proceedings.
How is a Property Division Worked out After Separation?
Prior to making any alterations to the existing property rights of both parties, the Court must first consider whether it is just and equitable to do so.
When making a determination about what percentage of the available assets each party is entitled to, the Court adopts a four-step process. Your Family Lawyer will provide you with advice in relation to your entitlements using the same process as follows:
Step 1 What is the property pool available for division?
Step 2 What contributions have each person made to this property pool?
Step 3 What are the future needs of each person?
Step 4 Is the proposed division of the property pool just and equitable?
After assessing your situation and the property pool relevant to your relationship, our Family Lawyers will provide you with your likely range of entitlements, based on the information available to us. We will provide you with a range because the Court has a wide range of discretion.
How Will Our Property be Divided Between Me and My Ex-Partner?
Depending on the nature of your assets and liabilities, there are often many options available for how you achieve a division of property with your ex.
Often parties enter into negotiations with a goal in mind regarding what they do or do not want to keep. Once you have received legal advice about your likely range of entitlements, you should obtain advice from your Financial Planner and/or Mortgage Broker to see if your idea for the perfect settlement is realistic.
For example, depending on the size of your asset pool, if you really want to retain your house, you will need to work out how much you can borrow. You should keep in mind that you may need to refinance the entire balance of your Mortgage (if you have one) and potentially pay a lump sum of money to your ex-partner as part of a Property Settlement. It is important to work this out prior to coming to an agreement.
You should also be aware of any taxation issues which may flow from a proposed Division. For example, if you plan to sell an investment property to facilitate a settlement, you need to seek advice from your accountant in relation to any potential Capital Gains Tax liabilities.
Is a Property Division Always Necessary?
A Property Division will almost always be necessary where property (e.g. the family home) is owned in the joint names of the parties.
It is always necessary to formalise a Property Division after separation (even where ownership of assets does not change) to avoid one party making a later claim even several years after separation. This can be done by way of Consent Orders or a Binding Financial Agreement under the Family Law Act 1975.
Our Family Lawyers will advise you about which option is best for you and if you are happy to go ahead, draft a Binding Financial Agreement or Consent Orders, which are binding and enforceable.
How We Charge
We offer flexible fee structures and payment arrangements for our clients including:
- A once-off fixed fee initial consultation to get you started in Family Law,
- Hourly rates or negotiated fixed fees for each stage of your matter.
Our Family Lawyers will discuss our fees and charges with you and will provide an estimate of the fees and charges likely to arise in your matter.
We service Newcastle, Central Coast, Maitland and Sydney.