FAMILY LAW PROPERTY
Family Law Property Division
Family Law Property matters are often complicated. Property matters can be finalised by Consent Orders, Binding Financial Agreement or by Court Orders. Wilding & Co Lawyers, property settlement lawyers Sydney, can provide assistance with your Family Law Property matter.
When marriages or de facto relationships come to an end, the couple are usually required to work out how they would split their assets (property). There are several ways to do this:
Binding Financial Agreement
A Binding Financial Agreement (“BFA”) is often referred to as a postnuptial agreement. A BFA requires Full and Financial disclosure by both parties and is not required to be just and equitable as it is not registered with the court. There are many circumstances where a BFA is not appropriate and where circumstances change, they can easily be set aside. To discuss whether a BFA is appropriate for you, please contact our office to make an appointment. The contact details for Wilding & Co Lawyers, property settlement lawyers Sydney, are at the bottom of this article.
Where parties can come to an agreement on the division of property, they can formalise the agreement through consent orders and make an application to the court for the orders to be approved by the Court.
Orders by the Court
When you and your former spouse cannot come to an agreement on the division of your property either party is entitled to apply to the court to determine the division of property on an interim and final basis.
Can I make a Court application to have my de facto property dispute resolved?
Both the Family Court and Federal Circuit Court are able to make orders, in reference to financial matters after eligible de facto relationships come to an end. In the past, in NSW, these courts would usually only make these orders in situations where the couple is married. Previously, state and territory courts would preside over financial disputes had by former de facto partners. Those courts would enforce the law that was applicable in that particular state or territory.
Should superannuation form part of these orders?
The superannuation splitting law regards superannuation as a separate form of property. It allows couples who are splitting up to value their superannuation and divide superannuation payments, however this is not compulsory.
What methods does a court use to decide how to split assets and debts?
There is no set way to divide your property. No one has a clear idea of how a judicial officer will rule on any particular case. Their decision is reached following the presentation of all the evidence. The judicial officer then makes a decision which they deem is fair on the basis of the specific facts of your case.
The Family Law Act 1975 outlines the general principles that the court weighs up when deliberating over financial disputes following a marriage breakdown or the ending of a de facto relationship. It doesn’t matter if the couple were married or in a de facto relationship, the general principles don’t change. They’re based upon:
- Determining what you have and what you owe, in terms of assets and debts and their value.
- Examining the direct financial contributions made by each person in the marriage or de facto relationship, like their employment earnings.
- Examining the indirect financial contributions by each person in the marriage or de facto relationship, like presents or inheritances.
- Examining the non-financial contributions made by each person in the marriage or de facto relationship, like looking after children and capacity to earn.
- Looking at the future – a court will consider factors such as age, health, financial resources, looking after children and capacity to earn.
How your assets and debts will be split between you will hinge on the specific circumstances of your family. Your settlement is unlikely to be the same as others you might be aware of.
When do applications for property adjustment need to be lodged?
- If the couple was married, property adjustment applications need to be submitted within 12 months of divorce being finalised.
- If the couple was in a de facto relationship, those property adjustment applications would need to be submitted within two years of the end of the de facto relationship.
- If an application is made outside of these timeframes, one would require special permission of a court. This won’t always be granted.
Do you have a Family Law Property matter that needs to be resolved? Contact Wilding & Co Lawyers, based in Balmain and the Sydney CBD, for assistance on 02 9701 0042.