If you are recently separated, it is advisable to become informed about your property settlement, particularly if you wish to reach an amicable agreement and avoid litigation. Unfortunately, there is no set timeframe as to how long a property settlement negotiation may take, there are however common stages in almost every property settlement:
Disclosure and information gathering stage
Before providing comprehensive advice about the range of potential outcomes in your property settlement, your family lawyer will first need to know about the values of all assets, liabilities and superannuation that you and your former spouse or partner have an interest in.
Parties have an obligation to provide full and frank financial disclosure of their financial circumstances to the other. This might extend to exchanging personal financial documents (such as taxation returns, bank statements, payslips), or a more informal exchange of disclosure whereby parties provide estimated values of their assets, or a screenshot of their bank account balances.
In order to determine the values of assets such as real properties, businesses, defined benefit superannuation or other significant assets, parties will generally obtain joint valuations from suitably qualified experts.
Your lawyer may also recommend that you seek advice from other professionals before you begin negotiating your property settlement, such as financial or accounting advice.
Obtaining advice
Once your family lawyer has received all of the necessary information about the asset pool, they will be able to provide you with advice about the potential range of outcomes in your property settlement, based on your instructions.
Your family lawyer should provide advice about your likely entitlement with reference to the “four step process”, which is (generally):
Identify and value assets, liabilities and superannuation owned by each party or in which they have an interest;
Assess the contributions made by the parties, including financial contributions, contributions made as homemaker and parent and non-financial contributions;
Identify matters relevant to the future needs of the parties, such as whether there may be a basis for an adjustment in favour of either party, having regard to matters such as age, health, income and income earning capacity;
Consider the effect of the above steps and to determine a just and equitable outcome overall.
Negotiating
Negotiating your property settlement can be the most difficult stage in your property settlement. Unfortunately, for some, they are not able to negotiate their property settlement either directly with their former spouse or partner, or with the assistance of a lawyer, and they will need to litigate in order to have a judge determine the outcome.
Negotiations may also occur through more traditional forms of negotiation, such as making written offers of settlement. Negotiating may involve participating in forms of dispute resolution such as mediation or conferences, to attempt to reach agreement.
Formalising your agreement
Once you have negotiated your property settlement, it is usually advisable to formalise your agreement.
The options to formalise your property settlement are to enter into Consent Orders or a Binding Financial Agreement. The most common and cost-effective option to formalise your property settlement is by entering into Consent Orders. Consent Orders are lodged with the Federal Circuit and Family Court of Australia, and will become approved by the Court, if the Court is satisfied that the outcome of the property settlement is just and equitable.
You should obtain specialist advice early, to understand your options and in order to be able to make an informed decision about your particular circumstances.
For advice in relation to your property settlement, contact Robinson + McGuinness to arrange an appointment on (02) 6225 7040, by email on info@rmfamilylaw.com.au or get started now online with one of our experienced lawyers.
Author: Margot McCabe