Property

Following the breakdown of a marriage, an appropriate division of property is critically important to the financial future of both parties. Prompt legal advice is vital.

While some property settlements can be reasonably straightforward, others can be very complex.

Where agreement is reached, in most cases the most common way of evidencing the agreement is by way of Consent Orders made in the Family Court of Australia. In some cases it may be more appropriate to enter into a Financial Agreement so as to exclude the jurisdiction of the Court in the future.

If you cannot reach agreement as to a fair and reasonable settlement either of you may apply to the Court for an order for division of the property accrued during your relationship. It does not matter whether assets are in one person's name or in the name of a company or trust. The Court can deal with those assets and divide them appropriately.

The assets may include the family home, investment properties, family businesses, investments such as shares, insurance policies, superannuation, inheritances, cash, vehicles, artwork and jewellery as well as debts like mortgages, personal credit cards and the like.

Generally speaking, when determining who gets what the Court adopts a 4 step approach:

The Court will first assess what makes up the asset pool and the value of same.
The Court evaluates the financial and non-financial contributions each of the parties to the asset pool, including where there are children, contribution as homemaker and parent. This step will take into account unusual contributions such as pre marriage assets and inheritances or gifts received during the marriage or after separation. The Court assesses these contributions by in terms of a percentage.
The Court will consider each of the parties future needs means and responsibilities, taking into account such matters as the age and state of health of the parties, their income and income earning potential and the ongoing care of children.
The final step for the Court to determine is whether the conclusion that they have reached taking into account the above factors ends up providing a just and equitable (or fair) division of the assets between the parties.

Before the Court will make any decision about property division it requires the parties and their lawyers to participate in a property mediation known as a Conciliation Conference.

Kelly & McHale Family Lawyers can provide assistance with early advice as to entitlements and in negotiating an appropriate settlement. We can also assist if proceedings need to be issued to ensure a proper outcome.

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