How the Court does it
What Can Be Divided?
Contributions and Needs
Out of Court
Choosing a Lawyer
Property Case Studies
Armstrong Legal are family lawyers specialising in property settlement. As experts in this challenging area of law, we can provide you with the legal advice you need to achieve a positive outcome.
Armstrong Legal are committed to helping our clients realise the best available outcome in their property settlement matter. Our family law team have years of experience handling the complex decision making processes associated with the valuation and division of assets.
Nonetheless, it is our belief that the best interests of any children to a former relationship must come before issues of property.
Our firm adhere to the provisions and sentiment of the Commonwealth Family Law Act and we will encourage the resolution of disputes away from the formal setting of the court wherever possible.
Property settlement and other important matters to consider
After the breakdown of a marriage or de facto relationship there are several important financial issues which must be addressed:
- Child Support
What are the needs of the children? What arrangements will be put in place to ensure their financial support?
As responsible family lawyers, Armstrong Legal believe that the needs of children and parental responsibility must come before considerations of property. As a result, we encourage our clients to deal with matters involving parenting and children at the same time as (or prior to) a property dispute.
- Property Settlement
How should our assets be divided? Assets include savings, real estate, shares, furniture, valuables etc.
How will the superannuation of one or both former partners be taken into account?
- Spousal Maintenance
Will one former spouse be required to provide financial support for the other?
Achieving property settlement away from court
Armstrong Legal are committed to assisting our clients in “pre-action procedures” away from court. Reaching a settlement in this way can save you considerable time, energy and can reduce your legal costs.
Before an application to the Family Court or Federal Magistrates Court can be made, both parties are required by the Commonwealth Family Law Act to attempt to reach an agreement away from court. This includes a process of dispute resolution.
Note: in some cases involving violence, refusal to negotiate or urgency, the court may regard pre-action procedures as inappropriate.
If an agreement can be reached through pre-action procedures then that agreement may be formalised through a financial agreement or consent orders.
Alternatively, if no agreement can be realised then an application for property orders must be made to the Family Court within 12 months of separation or divorce.
A legally binding financial agreement
Financial agreements are recognised under Section 90D of the Commonwealth Family Law Act. They are an important feature of effective pre-action dispute resolution because they provide an opportunity for parties to retain control of the decision making process and to reach an outcome suitable to both their interests.
Financial agreements capture a range of financial issues including, the division of property, finances and debt, superannuation and spousal maintenance.
It is a legal requirement that both parties must have received independent legal advice before signing an agreement.
Armstrong Legal can provide you with the legal advice you need to obtain a legally binding financial agreement in your family law property matter.
Court approved consent orders
Consent orders can include terms related to the transfer or sale of property, the division of superannuation or the maintenance of either of the spouse parties.
Consent orders are similar to financial agreements as both are written agreements created in the course of pre-action procedures.
Consent orders will be formalised by the Family Court if satisfied that the terms of the agreement are ‘just and equitable’ to the parties involved.
Making an application to the Family Court for property orders
In the event that an agreement cannot be reached in the course of pre-action procedures, then an application for property orders may be made to the court.
These orders can be made to either the Family Court of Australia or the Federal Magistrates Court and (under normal circumstances) they must be made within 12 months of divorce or the end of a de facto relationship.
The outcome of property orders will be arrived at through the course of a court hearing.
There is solemn obligation on behalf of both parties for full disclosure of financial circumstances.
The Four Key Questions asked by the court
In arriving at a decision on a proposed property settlement, the court will consider the following four key questions:
What is the ‘net asset pool’ of both the former partners?
A net asset pool includes the value of all of the property owned by the former partners and includes property obtained before or during the marriage or de facto relationship or after separation.
Other considerations that are relevant in determining the value of the net asset pool include: the inclusion of any resources over which a former partner has control or a future entitlement to (such as, inheritance), proper calculation of the impact of taxation and issues related to depreciation or appreciation of property.
What are the financial contributions from both former partners?
What are the non-financial contributions?
Non-financial contributions include: homemaker duties / care of children, gifts or inheritance.
- What are the ‘future needs’ of both former partners?
In assessing what the future needs of both former partners are likely to be, the court will have recourse to factors such as: age, future parenting responsibilities, income, financial stability, new relationships etc.
Is the proposed property settlement “just and equitable” to both former partners?
Superannuation and property settlement
Superannuation is considered within a separate Part of the Commonwealth Family Law Act: Part VIIIB.
Despite its separation, superannuation is still taken into consideration in the context of the overall property settlement and is therefore held to the same principles as other forms of property.
- Superannuation is to be considered by the court irrespective of whether it was acquired before or during the marriage or de facto relationship or after divorce or separation
- Superannuation is not subject to an automatic 50/50 division
- The Family Court / Federal Magistrates Court will make its final decision with respect to superannuation on the basis that the settlement is ‘just and equitable’
There are two main factors for consideration when dividing superannuation:
How the superannuation interests should be valued
How superannuation payments should be split
[superannuation may be split by financial agreement, consent orders or court orders]
Note: dividing superannuation does not mean that it can accessed earlier than would otherwise be the case.
Ascertaining the value of superannuation
It is important to know that the valuation of superannuation is exceedingly complex. The process is dependent upon numerous factors – including the type of fund in which your superannuation is held.
Before a financial agreement, consent orders or an application for court orders can be made, it is necessary to contact your superannuation fund trustee to acquire valuation information.
Your superannuation fund trustee will advise you of the need for the following forms to be completed on your behalf:
- Superannuation Information Form
- Superannuation Information Request Form
- Form 6 Declaration (demonstrates your entitlement to this information)
Note: each of the above forms are readily available from the publications section of the Family Law Courts website.
How Armstrong Legal can help you with your property settlement matter
There is no doubt that, in certain circumstances, arriving at a ‘just and equitable’ property settlement can be a difficult and stressful experience. This experience can often be prolonged by issues arising from the valuation of superannuation and an inability to arrive at a settlement through pre-action procedures.
Armstrong Legal’s expert family law team will provide you with the best available legal service to help guide you through the challenges of property settlement in a timely and cost effective manner.
We are specialists in the representation of our client’s interests before both the Family Court and in the course of important pre-action procedures. We look forward to discussing the best solutions to your property settlement matter with you shortly.