Divorce Property Settlement
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Property and financial settlements
When a relationship ends, one of the first and most pressing questions that springs to mind is ‘how do we divide our assets?’
Contrary to popular belief, it is not the case that assets are divided 50/50 in every settlement.
How assets are divided depends on their value, who contributed towards their acquisition, earning capacity, and care arrangements for children.
How assets are divided depends upon several factors including the value of the assets, who contributed towards the acquisition, conservation and maintenance of the assets, each party’s earning capacity, and care arrangements for the children of the relationship.
Every client has a different personal situation, and it is generally unhelpful to compare your situation to that of a friend or acquaintance.
What property settlement includes
Under the Family Law Act, property settlement encompasses more than just the family home. It can include bank accounts, superannuation, cars, investments, companies and trust assets, businesses, and other assets, as well as liabilities such as mortgages, personal loans and credit cards.
Understanding what is appropriate in each individual case generally requires a careful examination of each party’s personal financial position, based upon complete financial disclosure by both parties, and often expert property, business or superannuation valuations. We often work closely with our clients' accountants and financial planners, or engage financial experts, to ensure the best possible outcome.
It is crucial to seek specialist family law advice as early as possible prior to or at separation, to ensure you understand your personal position, protect your interests, and avoid issues years down the track.
Whether or not your separation is amicable, it is crucial to seek specialist family law advice as early as possible prior to or at separation, to ensure you understand your personal position, protect your interests, and avoid issues years down the track.
How we can help
We assist clients by:
- Providing them with straightforward practical advice to help them understand their position and entitlements when it comes to property matters, including advice about any early decisions or action that should be taken;
- Helping them to thoroughly understand their options and the legal process before speaking with their former spouse about property settlement or attending mediation;
- Assisting and representing them at mediation or in collaborative practice;
- Negotiating a financial settlement on their behalf, which may include a financial ‘package deal’ including a child support agreement and spousal maintenance if appropriate;
- Drafting Property Consent Orders and helping them formalise binding financial agreements; and
- If necessary, issuing or responding to Court proceedings, advocating strongly for clients, and supporting them throughout the litigation process.
If you need help understanding your rights, entitlements and options when it comes to property settlement, please contact us to arrange a confidential discussion.
Spousal maintenance
In some cases, one spouse has a legal obligation to provide financial support to their former spouse following separation. This financial support is called ‘spousal maintenance’.
Spousal maintenance is payable by one party if they have the capacity to provide financial support and the other party cannot financially support themselves without such assistance.
Spousal maintenance is payable by one party if they have the capacity to provide financial support and the other party cannot financially support themselves without such assistance.
Generally, spousal maintenance is payable on a short-term basis, until a property settlement is finalised. However, spousal maintenance can be payable on an ongoing basis (usually limited to a short number of years) to allow the payee to reestablish themselves financially following separation.
Spousal maintenance can be payable periodically, in a lump sum, or on a capitalised basis.
Binding Financial Agreements
Parties can enter into Binding Financial Agreements at any stage of a relationship including:
- Before marriage (Pre-Nuptial Agreements) or before parties commence living together, to determine how their assets are to be divided in the event of separation;
- During a marriage or de facto relationship, to determine how their assets are to be divided in the event of separation;
- After separation, divorce, or the breakdown of a de facto relationship, to formalise a property settlement between the parties.
Binding Financial Agreements made before or early in a relationship
Most clients entering into Binding Financial Agreements prior to or in the early stages of a relationship do so to protect pre-relationship assets, business interests, their existing children’s inheritances (if they are entering a second or subsequent marriage or relationship) or to ensure their own inheritance or separate wealth is not the subject of a later property settlement if the new relationship ends.
Most clients entering into Binding Financial Agreements prior to or in the early stages of a relationship do so to protect pre-relationship assets, business interests, their existing children’s inheritances
In cases like these, having a Binding Financial Agreement can make the separation process more straightforward and far less stressful, costly, and time-consuming.
Binding Financial Agreements made after relationship breakdown
Binding Financial Agreements made after the breakdown of a marriage or de facto relationship are used to formalise and make binding a property settlement or spousal maintenance agreement after the breakdown of the relationship, outside of the formal Court system. These arrangements can also be formalised by way of Consent Orders that are approved by the Court.
How Binding Financial Agreements work
Parties who enter into Binding Financial Agreements agree to oust the jurisdiction of the Court to make orders about property settlement or spousal maintenance and enter arrangements that are not formally approved by the Court. Because of this, for a Financial Agreement to be binding, each party must obtain their own independent solicitor. There are also several additional formal requirements that must be met in order for the Financial Agreement to be binding.
If the formal requirements are not strictly met, or if other troubling circumstances exist surrounding the making of the agreement, Binding Financial Agreements can be subject to challenge and set aside by the Court.
Testimonials
What our clients say
I was fortunate enough to have been given Lana’s details whilst trying to navigate my separation. Obviously it was a very confronting time for all involved, so to have someone like her guiding me through the process was a blessing. I found Lana to be very considerate, extremely professional and just a genuine person to deal with. Can’t recommend Hulse Family Law more highly.
I will be forever grateful to Lana for making the process of divorce as stress-free as possible. She was very knowledgeable, supportive and reassuring through the entire process. Lana always took the time to clearly and efficiently explain any questions I had along the way. I was extremely satisfied with the outcome and have no hesitation in recommending Lana’s high quality professional service for all your family law matters.
Separation is a highly emotional and challenging time, without any knowledge of family law, the way forward was full of uncertainty. Lana’s knowledge and experience was invaluable in providing me with the answers I needed and the options available to me. I wouldn’t hesitate to recommend Lana and Hulse Family Law.
During the pandemic, Lana helped me navigate an extremely difficult separation. With her extensive knowledge of family law and her professional approach, she was able to guide me through the process calmly with compassion, listening patiently to my concerns and offering a range of solutions. She helped me make informed decisions during an emotional and stressful time. The process was resolved efficiently with minimal conflict. I have no hesitations in recommending Lana for any family law matter.
Amazing service through one of the most difficult times in my life. Separation can be one of the most stressful situations anyone has to go through and Lana did the most incredible job of helping me through it every step of the way. Her genuine, kind and caring approach along with outstanding legal knowledge was second to none, along with personal advice she gave with all possible options and outcomes. Words can honestly not express enough how grateful I am.
Lana did an amazing job helping me navigate the very challenging and often scary process of separation, child custody and asset division. Her calm approach and confident advice steered me in the right direction and enabled me to obtain the best outcome for my family. Lana is patient, steady and wise and really manages to see the big picture without missing important details. I would recommend Lana for anyone seeking legal support through the process of separation.
I would highly recommend Lana, she has a wealth of knowledge and experience with family law. She helped me understand what my rights were and was able to give me the information I needed before progressing further with separation. I appreciated her timely manner in always getting back to me, and the way things were explained so well. I felt listened to and supported through a challenging time and was very happy with all the outcomes.
