Normally when two people are separated, they need to agree on how they should divide their property or assets, and debts. This can be achieved in one of the following ways to :
You and your former spouse can agree on property division without court involvement.
If you agree on the arrangements you can formalise your agreement with the help of an attorney
If you cannot reach an agreement, you can apply for financial orders to a court, including orders relating to the division of property and payment of spousal maintenance.
The family court and federal circuit court can make orders in relation to financial matters, following the breakdown of eligible de facto relationships. Previously these courts would generally make such orders only if the parties were married. Financial disputes between former partners were dealt with by state and territory courts, applying the law applicable in that state or territory.
The superannuation splitting law treats superannuation as a completely different property. It allows separating couples to value their superannuation and split the superannuation payments, even though it is not mandatory.
How does the court decide how to divide
There is no clear cut formula on how the court goes about dividing the property. A conclusive decision is come to after looking at all the evidence and the judicial officer decides what is just and equitable based on the unique factors you present in your case. The Family Law Act of 1975 sets out the general principles that the court takes into consideration while deciding financial disputes after the breakdown of a marriage. The general principles are the same, both in marriage or after separation. They are based on:
Figuring out what you have and what you owe, and your assets and debts, and what they are worth
Looking at the direct financial contributions of each party to the marriage or de facto relationship like wage and salaries
Looking at indirect financial contributions by each person like gift and inheritances from families
Looking at non-financial contributions to the marriage or de facto relationship like how much one took care of the children and homemaking
Future requirements in terms of age, health, financial resources, care of children and ability to earn.
The method by which is it decided how your assets and debts will be shared between two members of a marriage or de facto relationship will depend on the individual circumstances of the family. Your settlement might vary from those who have gotten it around you.
Time limit for property adjustment
In you were married, then property adjustment applications must be made within 12 months of your divorce becoming final. If you were in a de facto relationship, your applications for property adjustments need to be made within 2 years of the separation. It you do not apply within the time limit, special permission from the court is required.
Reaching an agreement
Reaching an agreement can offer many advantages for you and your partner.
You can make your own decisions
You can reduce the financial and emotional costs that get expended during legal proceedings
You will be able to continue your relationship as parents if you happen to have children
Moving forward peacefully and making a new life for yourself will be easier
Can improve communication with your former partner and be better able to resolve disputes in the future.
Why settle without going to court?
The simple answer is that it saves time and money. You know exactly what each of you will get and you can exercise full control over it. Going to court would mean you would have to let a judicial officer decide for you. Long court proceedings, additionally, can increase stress and pressure that your family may be going through.
Formalising the agreement
Agreeing on how your property will be divided without any court action is possible through either a financial agreement, or an agreement formalised by applying for consent orders in which you ask a court to make orders in terms of your agreement.
Being unable to reach an agreement
Before you apply to court you must have needed to make a genuine effort at resolving the matter by family dispute resolution. In family Court, parties wanting to apply for financial orders must follow pre action procedures, like attending dispute, before filing an application.
Pre action procedures
The goal of pre-action procedures is to help find out how to resolve the situation, and exactly how and why a dispute cannot be resolved to narrow the issues that require court intervention. Procedures apply when anyone intends to start a case, any is named a respondent is the case has already started, and their lawyers are involved.
Pre-action procedures are not required for applications only for child support, where a case includes the Court’s bankruptcy jurisdiction. Also the court might accept that it pre-action procedures may not be necessary in certain cases.
Settlement After Divorce?
Cases of property settlement can be gruelling and emotionally taxing, even when the divorce or separation is mutual. Not only do you have to leave someone you were married to or lived with for a long time, but you have to decide which of your beloved property goes to whom, and that can get complicated pretty quickly. It is a good idea for each of you to get a lawyer so that you can avoid going to court, since it costs more time, money and emotional distress.
Professional help will come to rescue
The Family Lawyers Perth are well equipped to deal with situations of high emotional volatility. There is a situation where there is a child, or bankruptcy, superannuation, spouse support and so on.
Experienced Property settlement lawyers Perth are easily able to resolve conflict and come to a compromise to the point where you won’t even need to go to court. You can trust Perth lawyers to come to a proper agreement where both parties can be satisfied with the compromise and no one needs to go to court.