A guide to property and financial settlements
Getting legal advice regarding your property settlement
You may want to know how to protect your assets, or how to get your fair share of the assets of the relationship.
Many people can reach agreement after negotiating with their former partner, but it’s still important to get legal advice to understand the process and to identify what is a fair agreement.
You can start the process any time after your separation. Bear in mind that if you cannot agree, there are time limits on when you can file court proceedings for property settlement – you have 12 months from the date of divorce or, if you are in a de facto relationship, within two years of separation.
Our family lawyers in Cairns can help you secure your financial future with good, legally-binding decisions about your property matters, whether you’re ready to settle or need to go to court
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The negotiation process
The negotiation process starts as a fact-finding mission of sorts.
Your lawyer will need information from you in relation to all of your assets, your former partner’s assets, and your financial circumstances as a whole, as well as your anticipated financial position into the future.
Your lawyer will also need detailed information about your relationship. As part of the preliminary steps, it is often necessary to get formal valuations for the assets of the relationship (such as the family home). It is also at this stage that you and your former spouse exchange documents in relation to the assets, and your financial circumstances generally.
All parties have a legal obligation to disclose all information relevant to an issue in the case and to share this information with all parties.
Though it may feel like you are giving away your secrets by handing over this material, the negotiation process is easier – and often quicker and cheaper – when the parties are open to providing full and frank disclosure at an early stage.
Formalising an agreement
When you reach an agreement with your former partner, it needs to be formalised with an application for consent orders – this is a simple document, filed with the court, which finalises the agreement and makes it binding and enforceable.
In some circumstances, an agreement can be formalised in a contract known as a binding financial agreement. Once an agreement is formalised, there are only very limited circumstances in which that agreement can be set aside.
Your lawyer can help you decide which option is best for you. Whatever agreement you reach must be formalised so that your position is protected into the future.
If you and your former partner cannot come to an agreement, you need to file a court application for property settlement. The application can be commenced at any time up until 12 months after your divorce, or two years after separation if you were in a de facto relationship.
Many applications are settled without a court hearing, but if you can’t settle then a judge will make the final decision regarding the settlement, taking into account:
- the financial contributions of each of the parties to the assets of the relationship
- the non-financial contributions of each of the parties
- the contribution of each of the parties in the role of homemaker and/or parent
- the future needs of the parties, including the need to provide for children, and the capacity of each party to provide for themselves and any children.