A lot of our clients find themselves searching for family lawyers near me when their relationship has broken down and they face the sometimes scary realisation that they are going to have to divide their assets. Our clients are often overwhelmed and they do not know where to begin.
Our Brisbane family lawyers provide practical, strategic and solution focused advice to help you get you from where you are to where you want to be, as quickly and cost effectively as possible. Our Brisbane Family Lawyers will provide you with a clear plan about the steps you need to take, to achieve the best possible outcome. We will break down the process for you into bite size pieces and help you to focus on the next step in the right direction, so you feel less overwhelmed about the road ahead. We will streamline the process for you, support you and guide you to tackle each stage of the process, carefully and methodically, one step at a time. We will fight for you to help you to regain control of your life. We will support you and guide you through every step along the way so you can achieve an outcome that makes a positive difference to your life.
The Property Settlement Process
The property settlement process can be broken up into five key stages, which we will step out in detail for you below. These five stages are as follows:
- Is it just and equitable to make an order altering the parties property interests?
- Determine the net value of the property pool which is to be divided
- Consider the contributions by each party to the property pool, at the commencement of your relationship, during you relationship and post separation;
- Assess the future needs of each party, including income, health issues and care of children
- Finally, given all of the facts above, is the agreement reached JUST and EQUITABLE?
STEP ONE – IS IT JUST AND EQUITABLE TO MAKE AN ORDER?
In the case of Stanford v Stanford [2012[ HCA 52, the High Court stated that the Court must first consider whether it is just and equitable to make an order in the circumstances of each individual matter and that this be considered the first step in any property settlement matter.
It is prudent that the parties first consider whether it is appropriate in the circumstances, for the Court to make an order altering the interests of the parties and whether it is just and equitable to do so.
In most cases, the Court is satisfied in making an order because the parties are no longer living together or using common property. It is therefore considered that the parties’ property will need to be divided and their financial relationship brought to an end.
The primary consideration of the Court is:
- whether it is appropriate for the Court to make an order in relation to the property interests of the parties;
- whether there should be an alteration in the parties’ property interests.
If you would like to read further about the first step, and how this came about, you can click here.
STEP TWO – PROPERTY POOL
This is an important preliminary stage in resolving a property settlement matter and can be incredibly daunting for clients due to the high volume of documents and information gathering required. In order for us to determine the property pool, and what assets and liabilities make up the property pool, the parties must exchange full and frank disclosure.
It is important that we are provided with information in relation to:
- all assets owned by you and the other party, including real property, cars, jewellery, shares, interests in any company or business;
- all liabilities in your name or the other party’s name. This can include student loans, credit cards, home loans and personal or car loans;
The property pool is to be determined as at the current date. A lot of our clients are of the impression that they negotiate based off the pool at the time of their separation, however this is untrue. You are required to provide disclosure of your current circumstances and current values, to determine the current property pool to be divided.
Valuations & Disclosure
If there are any assets where the parties do not agree as to a value, for example one party says the house is worth $500,000 and the other party insists the house is worth $700,000, then it may be the case that valuations are required to determine the value of that asset.
Other assets commonly valued are the family business, furniture, motor vehicles, equipment and other chattels of significant value.
Valuations are usually obtained jointly by the parties, with the costs of any valuation to be shared equally. Once a joint valuation has been obtained, the value of the asset produced by the valuation is then adopted for the purpose of negotiations between the parties.
Valuations and disclosure should occur first, to verify the property pool, before negotiations about division of the property pool can commence.
Once disclosure has been exchanged and valuations have been obtained for assets the value of which is disagreed, we will be able to determine what the net property pool is that is available to divide between the parties and we can then consider making a formal offer of settlement to the other party.
During this stage, it is very important that you are honest with your lawyer, and you disclose all assets and/or liabilities in your name or in which you have an interest directly or indirectly. To discover more about the importance of being honest with your lawyer and why you should not hide your assets, contact family lawyers near me or click here.
If you would like to read further about your Duty of Disclosure and how the disclosure process works, click the link.
STEP THREE – CONTRIBUTIONS
Once the property pool has been determined, disclosure has been exchanged and valuations have been obtained, then it is time to look at the contributions of each party.
First, we look at the initial contributions of each party. These are the assets and liabilities which you came into the relationship with. If one party came in with a significantly higher net position than the other party (e.g. perhaps they owned a property with a large amount of equity in it), then their contributions to the property pool may be considered greater than the other party (e.g. 55%/45% or 60%/40%).
Initial contributions may have less weight over the course of a longer relationship and more weight in a shorter relationship. It all depends on the size of the initial contribution, how it was utilised, the length of the relationship and the nature of the contributions by the other party during the relationship.
Secondly, we look at financial and non-financial contributions that the parties have made during the relationship, directly and indirectly, to the property pool that exists today. This will include the income earnt by the parties throughout the relationship and how each party’s income was used, who was the breadwinner and who was the homemaker, who cared for the children and any other contributions which have impacted the value of the property pool directly or indirectly, for example, renovations to the home completed by one of the parties.
Lastly, we consider any contributions that have been made post-separation, including contributions to mortgage repayments and other interest earning debt.
It is important to seek advice from family lawyers near me in relation to the relevance of contributions made by each of the parties and the impact of those contributions on your just and equitable entitlements.
STEP FOUR – FUTURE NEEDS
The future needs of each party is another important stage in determining your just and equitable entitlements.
Future needs considerations include, for example:
- the parties’ current ages
- the parties’ current health and whether they suffer any serious health conditions which may effect them in the future
- the parties’ current income and future income earning capacity
- care arrangements for any children and their relevant ages or needs
For example, if Party A has primary care of the children, only has capacity to earn $40,000 per annum working part time due to care of the children and one of those children has high needs, whilst Party B has care of the children on alternate weekends, earns $150,000 per annum and is of good health – then our family lawyers may advise that Party A would receive an adjustment in their favour as Party A has a higher future need for the property pool than Party B. The adjustment given in the particular circumstances will also vary depending on the number of children, the ages of the children and the size of the property pool to be divided between the parties.
We suggest seeking advice from family lawyers near me in relation to how your future needs might compare to the other party’s and what kind of adjustment might be made in your individual circumstances.
STEP FIVE – JUSTICE AND EQUITY
This is the hard part, and this is where family lawyers near me are very important in assisting you to discover what would be a just and equitable settlement in all of the circumstances, taking into account steps 1 – 4 above.
It is not only important to assess whether the agreement reached is fair, but also to consider whether the agreement reached is practical and all facts have been considered. The Court must also consider the actual order itself, not just the percentage division – for example, who retains what in the property settlement and whether that is practical and achievable.
Our lawyers have prepared a very helpful article regarding justice and equity which you can read by clicking on this link.
The Court is unable to make an order in relation to the division of property unless it is satisfied that the order is just and equitable: section 79(2) Family Law Act 1975 and section 90SM(3) Family Law Act 1975.
This is the first and also the final step of any property settlement matter.
Do you still have questions about the property settlement process?
Contact one of our friendly family lawyers near me at Barton Family Lawyers to book a reduced rate initial consultation where we will happily assess all of the matters above, run through those steps with you in detail and give you individual, tailored advice, about your property settlement prospects and what to expect in negotiating a just and equitable settlement.
Contact us on 3465 9332 to arrange your reduced rate initial consultation today.