PROPERTY

& FINANCIAL

SETTLEMENTS

Splitting headaches

Working out who gets what following a separation can be complicated and emotional, leading to heated arguments and resentment.

At Scott & Tam Legal, we’re here to work out what you’re fairly entitled to.  Our friendly team of expert property lawyers specialise in division of property and assets to help you settle on a happy solution.

We’ve armed our team of highly experienced professionals with the freedom and flexibility to spend more one-on-one time with you.  Our first goal is to help you reach an amicable agreement with your partner.  If we succeed, we can then guide you through the best way of formalising your agreement to safeguard your future.

When an agreement can’t be reached, our experienced staff can represent you in the Family Court. The Family Court adopts a three-step approach in settling property matters:

  • Ascertain and value the property

  • Assess the financial and non-financial contributions from the parties towards the acquisition, conservation and improvement to the property

  • Consider your present and future circumstances to decide whether there should be an adjustment to the financial entitlement

The Family Court has wide discretion as to how it may distribute your assets, financial resources and superannuation, and will only make an ‘order’ when it is just and equitable to do so.

FREQUENTLY ASKED QUESTIONS

Settling Property Matters

  • This depends on whether your name is on the title, mortgage, paying household bills etc., or whether you own the property. Property ownership can be negotiated between you and your partner, or the property may be sold with proceeds distributed according to each of your financial and non-financial contributions during the relationship.

  • Yes you can, since the process of divorce itself is separate from all other issues. As the legal ending of your marriage, a divorce is usually the last thing to do when everything else is sorted out, including children’s matters and property settlement.

    However, be aware that there are time limits on when property settlement must be finalised (12 months after a divorce, or two years following separation in a de facto relationship).

  • Not necessarily. When separating, the Family Court will consider the following as forming part of the asset and liability pool:

    • Real estate, including the family home

    • Money

    • Investments

    • Insurance policies

    • Inheritances

    • Shares

    • Superannuation

    • Any other assets such as cars, furniture and jewellery

    • Debts such as mortgages, loans and credit cards.

  • Property settlement for divorcing couples is calculated using a four-step process:

    1. The Court will identify the value of the assets, liabilities and financial resources of the parties.

    2. The Court will assess the financial and non-financial (such as the homemaker/parent role) contributions for the parties.

    3. The Court will then consider the future needs of the parties.

    4. The Court will then assess what it considers, in all circumstances, to be a just and equitable division of the assets and liabilities.

  • If you don’t want your former partner to be included in your existing will, you should make a new will once the divorce has been finalised, as creating a new will invalidates any former wills. Similarly, following a divorce, you should contact your superannuation company and complete the necessary documents to update your policies.

Relocating

  • Relocation could affect the child’s relationship with the non-moving parent, grandparents, siblings and friends, as well as disrupt their schooling.

  • If you’re a parent or guardian and wish to relocate with the child, and that move will impact on the child or time spent with the other parent, then you’ll need to obtain the other parent’s permission or an order from the Family Court before moving.

    If you’re able to reach an agreement with the other parent, you can enter into a written parenting plan or apply to the Family Court for Consent Orders before relocating.

    Note that if there are already parenting orders in place, or an application for parenting orders has started, it is an offence to take the child overseas, even for a short time, without the written consent of all the people mentioned in the parenting orders (unless the orders provide specifically that the child can be taken overseas).

  • Relocation can include moving suburbs, interstate or overseas. You both need to consider how relocating will impact on the child’s relationship with the non-resident parent and what proposals are to be put in place for them to spend time with the child/ren.

  • The relocating parent does not need to show ‘compelling reasons’ for relocating, as this distracts from the proper focus of the inquiry, which should be what is in the best interest of the child.

    If there is parenting orders that provide for equal shared parental responsibility, a significant move (that requires the child to move schools or interstate) should be agreed between the parents, as it is a major long term decision affecting the child.

    However, if your partner moves without seeking your permission, they will be in breach of the order for equal shared parental responsibility If this occurs, you may ask the Family Court for a recovery order to return the child to where they normally live.