Family Law Property Settlement - As easy as 1, 2, 3 (4)28 March 2014 | General
The process of obtaining a property settlement can seem complex and confusing, but it doesn’t have to be.
The Courts apply four basic steps when considering how to divide up a couple’s property after separation:
- Identifying all the property in which each party has a legal or equitable interest (i.e. all assets, liability and superannuation owned by either party, whether held in their personal name or through a corporate or trust structure) and assigning a value to that property.
To speed up this process, it is often useful to obtain a free appraisal of any real estate and an online valuation of any vehicles in either party’s possession before beginning the property settlement process.
- Deciding whether it is “just and equitable” to make any Orders adjusting the ownership of that property. The Court has indicated in decisions interpreting the recent High Court decision of Stanford v Stanford that the following circumstances may mean that it is not just and equitable to make any Orders:
(a) Where the couple have not actually separated;
(b) Where the couple have involuntarily separated (i.e. due to the physical illness of one party);
(c) Where there has been a longstanding informal agreement regarding the division of assets, liabilities and superannuation that both parties have acted in accordance with for a substantial period (at least 10 years);
(d) Where the contributions of each party are such that no transfer of property between the parties is appropriate.
If the Court finds it is just and equitable to make Orders, then the Court will proceed to the next step.
- Identifying the assets, liabilities and superannuation each party had when they first commenced living together, and what financial and non-financial (cooking, cleaning, parenting and the like) contributions has each party has made to the assets, liabilities and superannuation of the parties since that time. The Court will usually represent each party’s contributions as a percentage of the parties’ current assets, liabilities and superannuation.
- Identifying the future needs of each party, and deciding whether the percentage of the assets, liabilities and superannuation that each party would receive if their contributions alone were taken into account is sufficient when those future needs are taken into account. The Court may adjust the percentage division from step 3 at this time.
For further advice on property settlement, contact one of our expert family lawyers in Brisbane.