Property Division

Upon the irretrievable break down of a de-facto or matrimonial relationship the need to address the division of property and liabilities inevitably arises.

Many people are at a complete loss as to what their rights and entitlements may be with regard to the pool of property that has been accumulated during a relationship, which is completely understandable.

Over the years the law has developed a distinct or defined method or process that is applied by solicitors and the court alike when assessing and determining what a fair and reasonable division of property might be on a case by case basis. This process takes into account the property that you each may have had at the commencement of the relationship, the ongoing financial and non-financial contributions you each have made during the relationship and your respective personal and other circumstances at the time that the property is to be divided.

Unfortunately, for you and us alike, there are no magic formulas into which various figures can be inserted to arrive at a singular, certain answer as to how property is to be divided either in dollar terms or percentage terms. We, as lawyers, apply the facts particular to your relationship to the assessment process that has been developed by the law and, using our experience and knowledge of case law and what judges have previously determined in relation to how property is to be divided, reach a view as to what, in our opinion, is a fair and reasonable division of property.

In an ideal world you will be able to reach an agreement with your former spouse as to how the pool of property is to be divided. If you have reached such an agreement then it is very important to formalise that agreement. If you do not formalise that agreement then the door will remain open for your former spouse to have a “second bite of the cherry” at some point in the future in an attempt to seek or gain further property from you, including property you may have accumulated in your own right since separation.

Married or de-facto couples who separate and are able to reach an agreement as to how the property and liabilities are to be divided can formalise this agreement by entering a Financial Agreement or, alternatively, applying for and obtaining Family Court Consent Orders that reflect the agreement that has been reached.

A Financial Agreement is drafted in the form of a Deed. The Family Law Act 1975 requires certain things of a Financial Agreement before it is, at law, valid, binding and therefore enforceable. A crucial requirement is that each party to the agreement must, prior to entering into the agreement, receive independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of the agreement to the person being advised.

Applying for and obtaining Family Court Consent Orders to formalise your property agreement is a relatively straightforward process. The process does not require either you or us to appear at court. It is a matter of drafting the required documents and lodging them with the court. The information contained in the documents provides just enough information for the court to determine whether the division of property that would result if the court were to make the Orders is fair and reasonable. If the court considers the resulting division of property to be fair and reasonable then the court will make the Orders and post them to us.

There are many advantages to formalising your property agreement by way of a Financial Agreement or Family Court Consent Orders including:-

• Both the Financial Agreement and Family Court Consent Orders are enforceable. As such, if your former spouse fails to abide by a term of the agreement or Consent Orders then you can apply to the court to enforce the agreement or Consent Orders.
• The Financial Agreement or Consent Orders are intended to resolve property matters on a final basis and, as such, prevent a “second bite of the cherry” by your former spouse at some point in the future.
• If your agreement involves the transfer of any dutiable property (such as a home, motor vehicle, company shares and so forth) then the stamp duty that would have been payable should you have attempted to effect that transfer on an informal basis will be waived. This can, especially in relation to the transfer of a home, save several thousand dollars in stamp duty.

More often than not parties are unable to reach an agreement between themselves as to how the property pool is to be divided at the end of a relationship. A frequent impediment to reaching an agreement is a lack of understanding by one or both spouses as to how the law assesses what a fair and reasonable division of property would be and, consequently, what each party is fairly entitled to in accordance with the law. Much less frequently (thankfully) one spouse simply adopts an entrenched and obstinate position on the basis that he or she would much prefer to sacrifice the property pool to legal fees rather than see their former spouse get their full entitlement.

At KJB Law we have extensive and specialised experience in relation to matrimonial and de-facto property matters. We can:-

• Assess and advise you as to a fair and reasonable division of property in accordance with the principles of family law.
• Negotiate on your behalf with your former spouse or their solicitor to reach an agreement as to how the property pool is to be divided.
• If you have reached an agreement, draft a Financial Agreement to formalise same and provide to you the independent legal advice that is required by the Family Law Act 1975 in order for the Financial Agreement to be valid, binding and enforceable.
• Formalise any agreement you have reached by way of the Consent Order process including drafting and finalising the required court documents, lodging same with the court and, if required, assisting with the implementation of the Orders (which might include, for example, the transfer of a home, company shares, a motor vehicle and so forth).
• If, despite both your and our attempts, an agreement simply cannot be reached and court proceedings become necessary, then we can represent you in all aspects of litigation including drafting the documents required to commence proceedings, subsequent appearances at court once proceedings have been initiated and, ultimately (if required), preparing your matter for a Final Hearing at the conclusion of which a Judge or Federal Magistrate will make a decision as to how the property pool is to be divided.

Whether by negotiation or litigation, it is our aim to ensure that you are both aware of and receive the proportion of property that you are fairly and reasonably entitled to.

Enquiries

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