The issues raised by separation and divorce can be lifelong – particularly those relating to finance and property.
We bring in our experts from our Private Client team to help you cut through the commercial quagmire and financial spaghetti that often surrounds personal and business financial arrangements. You can trust in us to help you ensure you have all of the information at hand to make the best possible decisions on these issues.
A Court can make orders relating to capital assets, which involve their transfer or sale including business interests, share portfolios, properties, which cannot usually be revisited in the future. As such the decisions you reach during these negotiations will have a material and lasting impact on you and your family.
Whatever method you choose to resolve your financial and property issues, the starting point of any discussion is always a full and frank financial disclosure by both parties to each other as well as lawyers.
This is usually done by each party completing a comprehensive form setting out what their respective assets, income, liabilities and needs are. Our lawyers can complete these with you using specialist software to make this process as straightforward as possible.
Property Settlement Divorce in Australia - How Much Can You Receive?
If your marriage or de facto relationship has ended with a divorce or separation, you will need to organise a property settlement so that the net amount of your assets is divided between both parties. Can’t settle disagreements amicably with your partner? Get our lawyers to guide and settle any disputes for you. The amount you ultimately receive out of the property settlement will depend on your claim and how it’s calculated, as each case is complex according to it’s different circumstances.
There is, however, a time limit to property settlements after a divorce or de facto relationship separation. If you were in a de facto relationship, you have 2 years from your separation to submit a claim. If you were married and then divorced, you have 12 months to complete a claim. There are exceptions to this but they can be claimed on a case by case basis.
The Property Settlement Process
The process to determine a property settlement amicably is best achieved with a lawyer. The property settlement process consists of 4 steps. Your divorce property settlement lawyers should go through the steps with you during your consultations to make sure you understand your rights. This is so that you can understand the time and effort involved in lodging a claim online or in court. Understanding the steps in detail can be confusing, which is why it’s best to get a lawyer to help you with your property settlement.
The 4 steps are outlined below:
STEP 1: IDENTIFY THE ASSETS OF BOTH PARTIES
The first discussion you should have with your property settlement lawyer is about your net worth. It’s important to establish the assets and liabilities of both parties sooner rather than later. Assets may include valuable properties, shares, cars, superannuation, houses, businesses or any amount in a trust that’s owned by either party. Liabilities include amounts owed on credit cards, mortgages, etc. Information within each bank account may also need to be disclosed in order to understand spending habits and determine whether either party has wasted money or spent it unnecessarily before and after the separation. This first step with your lawyers needs to be completed thoroughly to ensure that there is nothing left to disclose when it’s too late.
STEP 2: ESTABLISH CONTRIBUTIONS MADE FROM BOTH PARTIES
Each party will be assessed on their contributions made before and during the relationship as well as after their separation. The contributions aren’t purely financial as there are non-financial contributions that are weighted equally. They can include gifts that are received from family and friends, taking care of the family and/or children as the homemaker and physical work that’s performed to complete and improve the house.
STEP 3: ADJUSTMENTS MADE FOR FUTURE NEEDS
It’s only after all assets and liabilities have been accounted for in the property settlement that appropriate ‘adjustments’ will be made to determine what each party needs for the future according to Australian Law. The court will judge if and how each party can take care of themselves as well as their work-life after the separation, specifically if they can still find and keep a job.
There are 9 probable factors that could be considered for each of the parties. Some of these factors can include:
- Care for children
- Child support
- Financial agreements
STEP 4: DETERMINE WHETHER THE FINANCIAL DECISION IS EQUITABLE
The final step of the property settlement process is to determine whether the court’s decision is fair and equitable. The court will judge whether one party gets more than the other or if both leave with equal shares – though that is very rare. It’s important that both parties can learn from each other and leave with their equal share from the property settlement, otherwise, it can leave one party feeling happy and the other party feeling jealous or angry at the final verdict, which can impact the children as they may feel that they are partly responsible for the separation. If there are objections to the final decision, mediation may be required. Lawyers can bring a mediator to act as a third party and ease any tension so that a decision can be agreed upon as soon as possible.
Working with Rockwell Bates Lawyers
Rockwell Bates is one of the most highly regarded and trusted family law firms in Melbourne with a wealth of experience in both simple and complex property and parenting cases across a full spectrum of issues. On the financial side this includes dealing with both small and large asset pools, family trusts and corporate entities, business and real estate valuations, superannuation splits, international property, spousal maintenance and Binding Financial Agreements. In relation to children, our work includes acting in relocation disputes, family violence matters, contravention applications, parenting alienation, cases involving substance abuse and mental health issues, and child support matters.
Alongside our experience, what sets us apart is:
Recognising that resolving a family law matter is usually a human problem as much as a technical and legal problem. We place a huge on emphasis ensuring that the separation process is dignified and, where possible, resolved outside court. We believe that collaborating, negotiating and mediating should always be encouraged before considering litigation.
In recognition of the emotional toll that family law disputes can cause on participants, we have introduced a ground-breaking new offering for families – the Rockwell Bates Mental Health & Wellbeing Coach – designed to help our family law clients through the most difficult emotional time and ensure they are nurturing themselves and their children as they navigate the pathway forward.
We provide access to a unique Rockwell Bates Family Law Funding solution to ensure those with large asset pools but limited cash availability can still get the best legal representation.
The way in which your Family Law team gave me a very clear road map of the divorce process and what to expect as well as an explanation of the costs to get to each stage - made me feel totally in control of my whole divorce proceedings. I would absolutely recommend Daniel and his team!
The Rockwell Bates team worked with my tax advisors and accountants to construct a complex estate plan and family business charter that protected the wealth I had created via our family business interest but gave us enough flexibility & clarity to enable me to help my children in their own business and personal ventures.
Property Settlement FAQs
All assets owned jointly or separately, such as property, vehicles, shares, etc, are all included in the asset pool, and the value of these assets are determined. Then all liabilities held by both parties are calculated and deducted from the value of the assets. This then becomes the net pool available for division amongst the parties.
Yes, you can. The sooner, the better. You have 12 months from the date of separation or divorce to arrange a property settlement. For de facto couples, you have 2 years to negotiate property settlement from the date of separation. If you don’t adhere to these timelines, you need to apply to the court for consent orders.
If all parties are amicable, you can have the settlement complete in as little as 2 weeks. If there are disagreements, it may take 3 or 4 months. If the settlement heads to the courts, it can take years.