Property Matters

Family Law Property Matters: De Facto Relationship or Marriage:

The issue of property settlement can be dealt with immediately a decision is made that a marriage or de-facto relationship has broken down completely.  Under legislation passed through parliament in 2009, property issues relating to de facto couples are now also dealt with under the Family Law Act.

Whether the relationship is a formal marriage or a de facto relationship, however, the best outcome is achieved by parties reaching an agreement.  That result is most often achieved when both parties are assisted by experienced lawyers.

The Steps:

Three important steps in the process of advising a client are-

• To establish the value of the pool of assets both at the commencement of the relationship, and now.

• To work out the contributions of each party to the acquisition and maintenance of those assets (both financial contributions and non-financial contributions such as in the role of homemaker and parent).

• To assess any adjustment that might be made having regard to each party's circumstances now and into the future (such as ongoing care of children).

Provision of Financial Disclosure

When instructing a solicitor it is therefore preferable to provide (preferably by email) as many documents in relation to your financial history as possible, including:-

1. Documents relating to the sale and purchase of any property
2. Income tax returns and notices of assessment.
3. Recent superannuation statements.
4. Details of all bank and credit union accounts, whether loan or savings accounts.
5. In the event of a business, financial statements and income tax returns of the business or partnership.
6. Details of motor vehicles and other significant assets currently owned.

What is the Aim?

For the solicitor, the aim is to:-

1. Provide advice as to an appropriate settlement.
2. Work out a plan to reach an agreement with the other party so as to avoid commencing proceedings in Court.
3. Negotiate with the other party or their solicitor.
4. If agreement cannot be reached at that stage, to arrange for mediation with the assistance of an accredited mediator.
5. If an agreement can be reached, prepare documents to have the agreement “rubber stamped” by the Court so that there is an enforceable order on which both parties can rely.
6. If agreement cannot be reached, to prepare documents to commence proceedings.  The primary aim of proceedings is not to run a trial, but to put pressure on the other party to negotiate reasonably so as to reach a settlement.
7. During that entire process to keep legal costs to a minimum.

How Much Will it Cost?

Costs are charged on the basis of the time spent in carrying out work on your behalf.  It follows, therefore that the sooner an agreement can be reached, the less costs will be charged.  That process is assisted by you providing as many documents as possible, and as soon as possible.

It is extremely important for parties to obtain independent legal advice as to their rights, as soon as possible after separation, and the starting point therefore is to see a specialist family law lawyer.