The breakdown of a marriage or a de facto relationship often raises the question, ‘how do we sort out our property?’ If you and your former spouse agree on how you divide your property, there are two ways to formalise a property settlement, either through Consent Orders or a Financial Agreement.
Consent Orders record your agreement in writing and it is filed with the Court for approval. When the Consent Orders are made, they have the same effect as a Court Order made by a judicial officer at the conclusion of a Court Hearing.
The Court usually applies a four stage approach when dealing with property matters. In summary, they include:
- Identifying what is in the property pool including all assets, debts and superannuation entitlements.
- Identifying the contributions made by each of the parties towards the relationship or marriage including financial, non-financial and contributions as a homemaker and parent.
- Looking at each parties current and future circumstances. The Court will look at the parties’ ages, health, capacity to earn an income, resources available to each party and the care of any children.
- Whether it is “just and equitable” in making an Order after taking the three above considerations into account.
A Financial Agreement under the Family law Act 1975 allows the parties of a marriage or a de facto relationship to enter into an agreement dealing with their financial arrangements without the need for Court approval. The parties can enter into Financial Agreement before, after or during a marriage or de facto relationship. There are some strict requirements involved in the creation of an agreement so it is recommended that you see one of your Family Lawyers to discuss the agreement in the first instance.
What if we can’t agree on how our property is divided? Do we have to go to Court?
There are a number of options that parties can undertake to try and resolve their property dispute before taking the matter to Court. However, there are time limitations for parties to bring an application for property or financial Orders before the Court, so it is best to get advice sooner rather than later.
Contact us to discuss the different options of dispute resolution that may work for you and your former partner.