Finalising Financial Matters between Separating Couples
As a Sydney property settlement lawyer serving families, David H Cohen & Co can help you navigate both pathways.
Depending on the circumstances, separating couples can settle their property matters either privately or with Court intervention.
Even if Court proceedings are initiated, couples can at any time, withdraw from the Court process and settle matters privately and confidentially.
It can be a very confusing and confronting time when you are trying to work out how to get on with your life. You have never been to Court and wonder what all the forms and questions mean.
You really need to talk to a lawyer who can show you your options and give you a breather.
We have helped our clients to get back on track with a clear view of their finances, how the children’s costs and schooling will be covered and with a secure settlement for their housing.
Each case has its own facts and situations.
Consent Orders: A Common Sydney Property Settlement Path
If couples can agree on how they want their property divided between them after separation, they can instruct lawyers to settle a formal agreement which can be filed at Court as Consent Orders. If the Court accepts the Consent Orders, they will be legally binding.
Although the Consent Orders are filed at Court and the Court checks that the orders provide a “just and equitable” (i.e. fair and reasonable) finalisation of the parties’ property matters, the couple do not have to appear at Court. The application for Consent Orders will be listed and considered by a Registrar. If your application is granted, sealed orders can be downloaded from the Court Portal and will have the same legally binding effect as a Court Order.
Court Proceedings for Property Settlement
If couples cannot agree on their financial matters, either party can make an application to the Court to seek a property settlement.
There are various documents and procedures which must be complied with including providing all information about the property the parties own and how each party contributed to the acquisition and maintenance of this real and personal property.
The 4-Stage Property Settlement Process in Australia
Over time, the Courts have outlined within the decided cases, a process to determine a fair outcome in adjusting the parties’ property between them after separation.
It has become known as a 4-stage process where the Courts work out what the property pool comprises, how each party contributed to that property, what the parties may need in the future financially, and finally, that the proposed orders to finalise the property proceedings, are “just and equitable” in all the circumstances.
Stage 1
The first step is to work out what property the couple have, what type of property they have, such as shares, the family home, investment properties, a family business, and superannuation as well as the property value and any liabilities. Are those liabilities or debts in both parties’ names? Are the couple both directors of the family business? Are they directors of a Self-Managed Super Fund?
Each party must provide what is called “full and frank disclosure” of all their assets.
Stage 2
The Court then needs to look at how the property was accumulated and what was the contribution of each party. This includes financial and non-financial contributions. If one party has stayed home to care for children so that the other party could concentrate of their career, the non-working party’s contribution will be considered in the overall assessment and also the negative impact in monetary terms of putting a successful career on hold.
Stage 3
The Court then looks at any specific needs of each party. If one party has maintained the role of homemaker parent and is suddenly faced with returning to work with outmoded skills, then the Court will consider the cost of re-education and training as a possible need. Additionally, the Court may discuss spouse maintenance if one party needs to continue caring for children until they reach school age or special child maintenance if a child has special needs.
The Court will need to consider the facts of your particular situation.
Stage 4
At the last step, after assessing the property pool and how to make orders dividing the property of the parties, the Court must consider whether the proposed property settlement is just and equitable, taking into account all the circumstances of the parties as set out in the first three stages we have outlined above.
Full and Frank Disclosure Requirements
In matters involving Family Law in Australia, property encompasses all assets, liabilities, superannuation, shared properties, properties owned by one party with another family member, family companies and/or trusts, and shares. Jewellery and personal items may also be included depending on the circumstances of their purchase and their value. Inheritances or potential inheritances may also be included, again, depending on the particular circumstances of the case.
Generally, as a starting point, parties will be asked to provide evidence of:
- Your bank account balances: usually the last 3 years;
- Your house/s and your car/s: values and date of purchase;
- Any investments, shares or trusts: are you director, beneficiary?
- Gifts from family or inheritances: when in the marriage and from whom?
- Your superannuation: do you have personal superannuation or are you a director of a Self-managed Super Fund?
- All liabilities including credit card debs, loans, mortgages, tax obligations: copies of tax assessments of last 3 years.
- Any family-related businesses.
We have worked with families to ensure that their sibling’s or parents’ businesses and companies are quarantined from the property pool. The facts of each case will provide the evidence of what the situation really is, so that the Courts can make an assessment of what comprises the property of the separating couple and their associated contributions.
Time Limits for Property Settlement Claims
The general rule is that for married couples, an application for property settlement should be made 12 months and one day after the date of the Final Divorce Order.
For separated de facto couples, an application should be made by 2 years after separation.
The Courts will consider applications out of time in circumstances where there may issues of hardship, if there is a reasonable explanation of why the party delayed initiating proceedings, taking into account issues such as finances and health, and whether a party would be unfairly prejudiced if the Court does not grant permission for an application to be heard out of time.
Speak to a Sydney Property Settlement Lawyer
It is not easy to enter unknown territory when you are dealing with the emotions of separation and the confusion of wondering how you will get to the next step and move on.
You should not have to deal with this alone. We are here to help and advise. Contact our property settlement lawyer Sydney team today for a confidential discussion about your situation.
Please call us on
1300 936 244
OR
This article is for information only and should not be relied on for legal advice.
