Dividing assets in a family law divorce matter in Australia involves several steps and considerations. Here’s a breakdown of the process:
- Reaching an Agreement
- Non-Legal Arrangement: If both parties can amicably agree on how to divide their assets, they can do so without legal documentation. However, this is not recommended as it lacks legal enforceability. We have cases which run into the hundreds of thousands of dollars where “handshake” agreements are reached and where a party has later come to the Court seeking a further distribution according to law. There are only two legally binding and enforceable ways to divide your assets, these are:
- A Binding Financial Agreement: This is a legal document that outlines how assets will be divided. It can be made before, during, or after the relationship. Both parties must have independent legal advice whereby an independent solicitor for each party signs a declaration that they have provided advice as to the advantages and disadvantages of the agreement to their client. These need to be very carefully drafted and considered and a process of full and frank disclosure by each party as to their financial circumstances (bank statements, tax returns etc) needs to be obtained and provided. These are susceptible to being set aside and our office has appeared in some landmark cases in this area in successfully setting aside these agreements. It is for this reason, we mostly recommend that the parties enter into consent orders, which are filed with the Court and after some judicial consideration they are granted by the Court.
- Consent Orders: If both parties agree on the division, they can apply to the Federal Circuit and Family Court of Australia for consent orders. A Registrar will review and approve the orders, after considering whether the orders are just and equitable. The Court may not grant orders or may raise questions or seek further information.
- Court Considerations
If you cannot reach an agreement, the court will consider the following factors:
- Identification of Assets: Determining the total pool of assets and liabilities.
- Contributions: Assessing the financial and non-financial contributions of each party, including homemaking and parenting.
- Future Needs: Considering the future needs of each party, such as age, health, income, and care of children.
- Just and Equitable Division: Ensuring the division is fair and equitable for both parties.
Each of these steps requires careful consideration by an experienced lawyer. Your outcome may vary significantly depending on how your case is conducted as there are variables and legal principles to be considered in relation to each step. You should seek advice if considering commencing proceedings or if you have been served by the other party with correspondence or court documents as to a property division.
- If You Can’t Agree
- Dispute Resolution: You can use mediation or dispute resolution services to help reach an agreement. The Attorney General appoints Family Dispute Resolution Practitioners and generally they are best equipped to assist you, although an FDR practitioner is not essential as you can mediate with two competent lawyers (if they deem it suitable), organisations such as Relationships Australia, and a mediator such as one nationally accredited with NMAS.
- Litigation: If mediation fails, you can apply to the court for financial orders. The court will then decide how to divide the assets based on the factors mentioned above. This will involve a process which is best navigated by an experienced Family Lawyer.
Steps to Take
- Seek Legal Advice: It’s crucial to get legal advice to understand your rights and obligations.
- Document Your Agreement: If you reach an agreement, ensure it is legally documented through a binding financial agreement or consent orders.
- Prepare for Court: If you cannot agree, gather all necessary financial documents and evidence to present your case in court and make sure you obtain and follow competent legal advice from an experienced family lawyer.
Navigating a divorce or separation can be challenging, but understanding the process can help you manage it more effectively.
Contact us on 1300557819 for a free conference with our experienced and specialised Family Law team and we can provide you with an advice as to the range of likely outcomes, costs and process to get you to your best outcome.
