What is a property settlement?
When a couple splits up as either a married couple or a defacto couple, there is a legal process available to them which involves the division of the assets of the relationship. A property settlement refers to the process where the couple either through the process of consent or by court court order settle that each will take away particular values of the assets of the relationship. Although the law much prefers the process of consent, if this is not possible then a court order will be made and it is considered contempt of court to ignore a court order. This can result in a hefty fine or even imprisonment if it is serious, so as a last resort, the court process is a binding and final element in the system of family law in Australia. Also, couples can form what is called a binding financial agreement if they can come an agreement about the division of the property and as long as they both get independent financial advice saying that they have understood the implications of the document that they are signing and their full legal effect and that these things have been explained to them by a lawyer, a binding financial agreement can come into force under the terms of the Family Law Act 1975 (Cth). This is the major form of a property settlement in Australia.
What can I expect from a property settlement?
There are broadly four steps involved in the property settlement process in Australia for any type of relationship that is breaking up. A court looks firstly to the assets of the relationship which can include super, property, cash, shares, items of personal property, cars, boats and a series of other aspects of real property. The second step, once the property has been established is to ascertain the contributions of each of the parties. This may include inheritances, income, household work, caring for children pre-existing assets and a range of other things. It is important to note that this process values highly the non-financial aspects of contribution. The third step is to look at the future needs of parties which involves looking at who will be caring for children, the age, state of health and employability of each party and any financial resources which currently exist such as pensions, annuities and the like. There is an expectation that each party has a right to a reasonable standard of living as result of the orders. The final step is that the court may adjust the settlement in any way that it sees as just an equitable in the circumstances, which is a very broad ranging discretion.
If you would like assistance with any aspect of a property settlement please do not hesitate to contact us. Our lawyers are always online as well, you can chat to them by clicking on the chat window to the top left.
