Property includes:

• the family home; 
• any other real estate; 
• cars and other vehicles;
• money held in bank accounts;
• shares, superannuation and other investments;
• the value of businesses; and
• your household contents at their “Gumtree value”.

Division of property also includes debts.

The three most important variables taken into account by a court when determining a property settlement are usually:

• size of the asset pool;
• length of relationship; and
• whether there are children.

Where there are children of the relationship, a court will often make an adjustment in favour of the primary care giver of between 5% and 10% of the asset pool.

This is subject to consideration of other special circumstances including:

• initial contributions of each party (e.g. assets held before the relationship commenced;
• special contributions of each party (e.g. inheritance, gifts, compensation, domestic violence);
• earning capacity of each person;
• age, illnesses or disability;
• whether there was significant “wastage” by one person; e.g. gambling or expensive hobby.

• A short term relationship is defined as less than 5 years. If all other factors are equal and there are no children, parties can expect to walk away with what they came into the relationship with and a share of any increase in the asset pool since the relationship commenced.
• A medium term relationship is defined as 5 to 12 years. A party that makes a significant initial contribution or a special contribution will be given substantial credit for the value of those contributions at the time they were made and “spring-board” arguments may be made.
• A long term relationship is defined as more than 12 years. Initial contributions and special contributions are given less weight.

• Step 1: Identifying and valuing the asset pool – all assets including superannuation and liabilities (debts).
• Step 2: Assessing the financial and other contributions, direct and indirect (e.g. looking after children and homemaking) made by each person.
• Step 3: Assessing the future needs of the parties, including age, income and earning capacity, resources, care of children, illnesses and disabilities.
• Step 4: Considering if in the whole, the proposed division of property is fair to both parties.

• Formerly married couples must usually file property settlement proceedings in court within 12 months of their divorce.
• De facto couples must usually file property settlement proceedings in court within 24 months of separation.
• The court may extend this time if good reason can be proven for not having made an application before the usual deadline.

• A large majority of cases are settled by negotiation before they reach a trial.
• It is very difficult to give an estimate as to how much your case will cost from start to finish. Each case is different. It depends on how many issues need to be negotiated with your ex-partner.
• After an initial consultation with us we will provide you with a Costs Agreement that will estimate what the costs are expected to be in your case.
• We will also usually be able to provide you with a range of the settlement outcome we would expect you to receive based on your instructions, if your matter goes all the way to a trial before a judge.

• Even if you can agree about some (or all) things you may still want to speak with a lawyer to ensure your interests are protected especially in circumstances where you have some doubts, are feeling pressured or if you just want to get an idea about what your rights are.
• You may need to speak to a lawyer:

1. if you have negotiated the division of property with your ex-partner and want to check that it is fair;
2. if you are in conflict with your ex-partner and cannot come to an agreement about the division of property;
3. if you are going to sign a binding financial agreement (BFA); 
4. if your ex-partner files an application at the court seeking orders and you do not agree; or
5. if you or your ex-partner arrange for mediation, you may want to engage us to assist you prepare or attend with you for support.

• Usually the court allocates a percentage of the net property pool to each party. The net property pool is calculated by deducting the total liabilities for both parties from the parties’ combined total assets.
• We will be able to give you an idea about likely percentages in your situation after taking your instructions.
• The court can also specify who gets to keep which assets. If an asset such as a house needs to be sold the court will also specify how the proceeds should be divided up. 
• Each case is different and the decision will depend on the specific circumstances of the family including contributions and future needs, what is in the asset pool and what the court considers to be fair.

• No. If you cannot reach your own agreement the court will carefully analyse the facts of your case against a number of questions before making its decision. These include:
• the combined assets and liabilities of the parties;

1. past contributions;
2. future needs; and
3. what the court considers to be fair in the circumstances.
4. The most important consideration for the court is that the settlement is ‘just and equitable’. This will mean different things in different cases.

• The percentage which the court considered just and equitable in your friend’s case may be very different from the percentage which the court awards to you.

• Spousal maintenance is when one party makes payments to support the other party after a breakdown in a relationship. This means that the person seeking maintenance has established their “need” and the “capacity” of the other party to pay.
• You can either negotiate terms about spousal maintenance in a binding financial agreement (BFA) or include it in your application for consent orders before the court. 
• Spousal maintenance may be paid over a set period of time or in a lump sum. 

• You will be able to tell the court your side of the story through the submissions we make to the court as your lawyer, in your affidavit (written statement) and by evidence in the witness box. You will also provide a Financial Statement which is an opportunity to tell the court relevant information about your situation.
• Keep a diary of all the things you think are important and prepare a chronology of important events. These will assist us to prepare your case as effectively and efficiently as possible. It will also assist us in understanding what concerns you. We will advise you on what information the court will want to know.
• You will likely need evidence to support your claims so start collecting and keeping a file of relevant financial documents.

• This really depends on whether you case goes all the way to a final hearing or a negotiated settlement is reached sometime before then.
• Presenting it is taking non-urgent cases up to two or more years to reach final hearing and then the parties are waiting longer again for the court to give judgment.
• It is now possible for property settlements to be arbitrated before a senior lawyer who is not an appointed judge. Both parties have to agree to this including that they will be bound by the decision of the arbitrator. The parties also have to pay the costs of the arbitration. The advantage of arbitration is that matters are dealt with much more quickly than they are in the Federal Circuit Court or the Family Court. 
• Cases that cannot be negotiated can take a long time and be emotionally and financially draining for the parties.

Question

My partner is pressuring me into signing consent orders. I do not agree with a lot of the things that he has written and do not think it is a fair division. What can I do?

Answer

• Coming to an agreement will usually require some give and take. However if you are having trouble negotiating or you are feeling pressured then you should engage a lawyer. We can  provide you with legal advice so you fully understand your rights and ensure your interests are protected. We can also negotiate directly on your behalf and seek to avoid the need to go to court. 

Question

My ex-partner refuses to go to mediation for our property settlement dispute. What happens now? Can I still go to court?

Answer

• Mediation for property matters is not compulsory however we may be able to persuade your ex-partner that it is in his interests as well as your own to negotiate a settlement and avoid the costs of contested court proceedings.
• If your ex-partner has a lawyer then we will seek to negotiate on your behalf to avoid court if a reasonable settlement can be reached without doing so.
• If your ex-partner continues to refuse to negotiate we can assist in preparing an application to file in the Federal Circuit Court or the Family Court, and represent you in the court hearings.

Question

My ex-partner used to own a really expensive car but he says he no longer has it because he sold it to his brother. There is also a whole pile of tools which suddenly went missing from the garage. He says they were stolen but there is no sign of forced entry and he won’t go the police and make a report. I think he is just trying to hide these and other assets.

Answer

• You are right to raise these issues with us and gather evidence in support of what you believe are hidden assets or failure to provide full financial disclosure. We may raise this with the court at an appropriate time and take steps to pressure your ex-partner to provide details of any assets he has disposed of, hidden or gifted.

Question

I was given money in a trust. It is only in my name and my partner does not know about it. Will this be part of the property settlement?

Answer

• Yes. All the assets of both parties are included in the joint asset pool.
• It does not matter whether it is held in one name only or in both your names. 
• The law required and the court expects you to fully disclose your finances. If you do not and this is discovered, the court may sanction you and take a dim view of your case.

Question

I stayed at home with the children and so did not contribute a lot of money to our asset pool. Does this mean I will get less?

Answer

• Not necessarily. The court takes into account non-financial contributions as homemaker. Many other factors such as length of relationship, age, health, illnesses, earning capacity and size of the asset pool are also relevant.

Question

I renovated our house over the last 10 years. I put an entire new extension on the back of the house. My ex-partner says that because I did not pay for the house when it was bought that I will not get a cent. Is this right?

Answer

• No. This kind of work constitutes a ‘non-financial’ contribution which the court considers when deciding what is ‘just and equitable’ for the property settlement.

Question

I have accumulated a lot of superannuation from before I was married. Can I keep this separate and just count the super accumulated from when we got married?

Answer

• No. The court will take into account superannuation accumulated before the relationship, during the relationship and after separation. However it is relevant to the court’s assessment that you already had a significant superannuation balance at the commencement of your relationship.
• The court will also consider what you have accrued in superannuation since separation.
• The ‘just and equitable’ principle applies equally to superannuation. 
• Usually superannuation will form a part of a larger property pool available for division.
• You can apply to your superannuation fund for a valuation for family law purposes. If your case goes to court you will need to provide this document to the court as part of your evidence. 
• Once you receive a response from your superannuation fund providing the value of your fund you will need to disclose that to the other party and we will attach it to your court documents.

Question

My ex-partner says his business is not worth anything and is almost bankrupt. I do not believe him. How can we put a value on this asset?

Answer

• The parties can agree on an independent accountant or valuer. If necessary an application can be made to the court seeking the appointment of a valuer who will prepare a valuation for the case. 
• Usually the cost is shared by both parties equally.

Question

My ex-partner says he is going to make a claim for spousal maintenance but I know he has a good job and can support himself. What will the court do?

Answer

The court will consider the application and all the evidence accompanying it. 

• You will both need to file evidence about your financial situation. 
• This means your ex-partner will have to inform the court about his entire financial situation including his employment and income. 
• This factor will be taken into account as well as your financial circumstances when assessing whether or not you will be ordered to pay spousal maintenance. 
• The court will assess whether or not your ex-partner is able to support himself and whether or not you are in a position to contribute to spousal maintenance. 
• We can advise about your particular circumstances and how likely it is that an order would be made for you to pay spousal maintenance after taking your instructions.