As a separated couple, there are many factors to consider when dividing assets and property, including legal regulations, taxation consequences, and financial resource and business interests. At Rachel Storey & Associates Lawyers, we understand the complexities involved in a property settlement and have extensive experience in navigating these matters.
Accurate & Relevant Advice
Our team provides accurate and up-to-date advice to individuals about their property settlement entitlements and negotiates settlements to avoid court proceedings wherever possible.
25 Yrs Experience
With extensive experience across every aspect of family law, you can rely on the advice and guidance we provide.
Fair & Equitable Outcome
We are committed to helping our clients achieve a fair and equitable outcome, and we understand the importance of seeking expert legal advice early, particularly when business interests are involved.
Achieve a Fair & Equitable Outcome
Property settlement is a crucial step in finalising a relationship after it breaks down, and using a property settlement lawyer can significantly help in navigating this complex area.
The process for dividing property and assets during a divorce or separation does not have a set rule and depends on the circumstances of each case. The Family Law Act 1975 sets out the factors that must be considered: financial contributions, non-financial contributions, liabilities/loss and future needs of the parties.
Property settlement can be complicated if one or both parties have interests in a business or businesses or trusts, and expert advice is essential to ensure the tax consequences are known and the settlement is structured most tax-effectively.
Helping our Clients Achieve the Best Possible Outcome
Parties now must engage in a number of events before they can issue proceedings in the Court, and they are advisable to complete to ensure that the best property settlement can be reached without the likelihood of it being overturned in future – thus securing your long term future.
Parties must engage in what is called ‘pre hearing disclosure’ where they must disclose all assets, income and liabilities for certain periods of time depending upon the type of documents. It is important to get this right – and to ensure that the other party has provided full pre-hearing disclosure.
At Rachel Storey & Associates, we have extensive experience in forensically looking at accounts and financial documents to ensure that all matters are disclosed properly before the making of an agreement. This protects your interests in having an agreement that is least likely to be overturned or voided due to lack of disclosure.
The parties must also engage in mediation (except where there is family violence, a party is incapacitated or the matter is urgent). Rachel Storey is a nationally accredited Mediator, Arbitrator and Family Dispute Resolution Practitioner. Offering a mediation service ourselves means that we know, and can help best prepare you for mediation.
Factors such as the length of the relationship, assets, contributions, and special needs of parties and children are taken into account when determining family law property settlement. The Family Law Act 1975 sets out these factors and requires the family court to consider them when making a property settlement order.
The length of the relationship, including any period of cohabitation before marriage, is an important factor as it reflects the level of financial interdependence between the parties. Other factors include the other financial resources and non-financial contributions made by each party to the relationship and financial circumstances, such as income, property, and domestic duties.
The future needs of parties and children are also considered, such as age, health, income, and care arrangements. The court aims to achieve a just and equitable outcome for both parties, based on their individual circumstances. This means that each case is unique and requires a careful assessment of the evidence and arguments presented.
We can negotiate a property settlement to create a property settlement through one of three options: consent orders filed with the Court, binding financial agreements, or the attainment of Court Orders, which may be done through mediation or may require court proceedings.
It is important that you obtain advice as to which settlement type would best suit your interests.
We can apply to the Court for urgent Court Orders in order to secure the sale of a property before reaching a final settlement so parties are not stuck in limbo with rising costs of living and mortgage payments.
Consent Orders are formal written agreements that specify terms and conditions agreed upon by both parties in a family law proceeding that then need to be certified by the Court. They can cover financial matters such as property settlements, child support agreements, spousal maintenance, and child support payments. Consent orders can be changed if both parties agree and the Court approves.
Binding financial agreements can deal with all or part of property, maintenance, or both. They can be used instead or with consent orders. A financial agreement is binding if signed by all parties and each party provided with independent legal advice. However, they can increasingly be set aside by the court in particular circumstances.
Finally, Court proceedings may be sought if there is no agreement. The parties often need to attempt mediation again, and if there is no settlement, your case involves appearing before a Judge to have the Court decide on the proposed property settlement or agreement. This option should be used as a last resort as it can be costly and time-consuming – and, the final decision is out of your hands.
When going through a divorce or separation, it’s important to be aware of the time limits for making applications for property and financial settlements.
According to the Family Law Act 1975, applications must be made within one years of the date of divorce or separation. However, the court may grant permission to apply outside of this time limit in certain circumstances, such as cases involving serious injustice.
If you are in a de facto relationship, you have two years from the date of separation to apply to the Court.
It’s advisable to negotiate a property settlement as soon as possible after separation to avoid disputes and ensure a timely resolution – this is especially so if your financial position is likely to change in the future.
The length of a property settlement case will depend on factors such as complexity and number of assets, but the court encourages parties to settle their dispute without the need for litigation.
We believe in a practical and diligent approach to assisting our clients during what can be an emotionally charged time. There are three options for navigating property disputes and settlement through negotiation and mediation:
Collaborative law: This approach involves both parties and their lawyers working together to reach a mutually acceptable agreement. Collaborative law aims to resolve disputes without going to court and can be a cost-effective and efficient way to negotiate settlements. Rachel Storey is a collaborative lawyer and always seeks to negotiate an outcome that is to your benefit without expensive legal processes but with common sense.
Mediation: A mediator is a neutral third party who helps the parties involved in a dispute reach a resolution. Mediation can be a less confrontational approach to resolving property settlements and can be particularly useful when parties need to maintain an ongoing relationship, such as co-parenting. We offer a mediation service so we know how to prepare you properly to get the most out of your mediation.
Negotiation: This approach involves the parties and their lawyers negotiating a settlement agreement. Negotiation can be a flexible and tailored approach to resolving property settlements, allowing parties to control the outcome and avoid the uncertainty of going to court.
When finalising a property settlement, it’s important to consider the option of obtaining consent orders.
These orders are formal and written agreements that specify the terms and conditions agreed upon by both parties in a family law proceeding.
Consent orders are often used to cover financial and property matters, such as property settlements, spousal maintenance, and child support payments.
One of the advantages of using consent orders is that they’re binding and enforceable by the courts. This means that if one party fails to comply with the terms of the agreement, the other party can take legal action to enforce the orders.
Consent orders can also be changed if both parties agree and the Court approves. It’s important to note that once consent orders are made, they’re final and binding, and can only be set aside or varied in limited circumstances.
Obtaining a binding financial agreement is another option to consider when finalising a property settlement. This agreement can deal with all or part of property, maintenance, or both.
Unlike Consent Orders, binding financial agreements aren’t required to be approved by the court. For a financial agreement to be binding, it must be signed by all parties and each party must have received independent legal advice.
A financial agreement can be a useful tool for couples who want to have more control over their property settlement. It allows parties to negotiate and agree upon the terms of their settlement without the involvement of the court. However, the process of disclosure of all assets, income and liabilities still applies to ensure that the agreement cannot be overturned at a later date.
However, financial agreements can be set aside by the court in certain circumstances, such as if there has been undue influence or if the agreement is unconscionable. It’s important to seek the advice of a property settlement specialist family lawyer to ensure that any financial agreement is fair and legally binding.
A prenuptial agreement is a legal document that outlines how a couple’s assets will be divided in the event of a divorce or separation. It can be especially valuable for couples who have significant assets, business interests, or children from a former partner or previous relationship.
A prenuptial agreement can provide both parties with peace of mind and clarity about their financial future, should the relationship come to an end. It can also help prevent lengthy and costly further legal proceedings and battles in court.
However, it’s important to note that prenuptial agreements must be entered into voluntarily, with full disclosure of each party and former partner’s assets and liabilities. It’s also essential that each party obtains independent legal advice before signing the agreement, to ensure they fully understand the implications of the document.
A cohabitation agreement are similar to pre-nuptial agreements and are commonly used by parties where it is their second marriage, or a civilly-registered or de facto relationship or where they have children from a previous relationship. These agreements outline how a couple’s assets will be divided in the event of a divorce or separation. It can be especially valuable for couples who have significant assets, or, business interests.
A cohabitation agreement can provide both parties with peace of mind and clarity about their financial future, should the relationship come to an end. It can also help prevent lengthy and costly further legal proceedings and battles in court.
However, it’s important to note again that cohabitation agreements must be entered into voluntarily, with full disclosure of each party and former partner’s assets and liabilities. It’s also essential that each party obtains independent legal advice before signing the agreement, to ensure they fully understand the implications of the document.
We can obtain formal and binding property settlement orders through the court, which is a common way to resolve disputes between separated couples. These orders can involve selling or transferring property interests, splitting an asset pool or superannuation, retaining property, dividing liabilities or personal loans. The court can also make orders that are directly binding on third parties, such as property owned by companies or business partners.
When obtaining property settlement orders through the court process, it’s important to note that the court can set aside or vary final property settlement orders on limited grounds. These grounds include fraud, impracticability, exceptional circumstances related to financial circumstances or child welfare, failure to comply with the order, or proceeds of crime being a factor.
Additionally, parties can consent to set aside or vary final property settlement orders, or appeal the order within 28 days on limited grounds. Therefore, it’s essential to seek the advice of experienced property settlement lawyers who can guide them through the process and obtain legal advice to ensure that your interests are protected.
Valuing businesses can be a complicated aspect of dividing property in a family law matter after a separation, especially if one party or both parties have interests in a business. It can be difficult to determine the true value of a business, and this may require the use of an expert. In such cases, a court may grant an injunction to stop a party from dealing with business assets during a family law dispute.
We work with many excellent financial advisors, valuers and accountants to remain at the forefront of the valuation of businesses and the issues regarding such matters.
In addition, the court can make orders that are directly binding on third parties, such as companies or business partners or trusts. It’s important to note that the division of property, especially involving businesses, companies, and trusts, can have significant taxation consequences. Expert advice is essential to ensure the tax consequences are known and the settlement is structured in the most tax-effective way.
When it comes to valuing businesses in property settlement, there are a few important factors to consider.
The share in a family company may have limited market value to an independent purchaser, but the real value of the asset pool and the interest to the owner may be significant.
A business may have minimal assets, but might generate considerable income.
The court may need to consider the future earning potential of the business.
The court may need to take into account any potential liabilities or debts associated with the business.
The court may need to consider any ongoing involvement of either party in the business.
With all these factors in play, it’s important to have an experienced lawyer who can help navigate the complexities of property settlement involving business interests.
Considering the taxation consequences is crucial when dividing property that involves business interests. The division of property, especially businesses, companies, and trusts, can have significant taxation implications. Expert advice is essential to ensure that the tax consequences are fully known and that the settlement is structured to be most tax-effective.
At Rachel Storey & Associates, we understand the importance of considering taxation consequences when navigating property settlement matters. Our team works closely with accountants and tax advisers to structure property settlements in a way that’s most tax-effective for our clients.
We take a diligent and practical approach to assist our clients during what can be an emotionally charged time. We ensure that their property settlement entitlements are accurately assessed, and that the appropriate property settlement amount is structured to be financially beneficial.
If the trial judge made a factual error, an error of law, failed to give adequate reasons for the decision, was prejudicial, or if a party was denied procedural fairness, there may be grounds for appeal in a property settlement case.
It’s important to note that appealing a property settlement decision isn’t an easy task. Parties must provide evidence that the trial judge was wrong in their decision-making, which can be a difficult task to prove.
If a party is considering an appeal, it’s recommended to seek legal assistance and advice from a professional property settlement and family lawyer. They can assess the strength of the case and provide guidance on the best course of action.
It’s important to remember that an appeal isn’t an opportunity to re-litigate the entire case, but rather to address specific errors made by the trial judge. Therefore, it’s crucial to have a solid understanding of the grounds for appeal before making any decisions.
Meet Our Lead Solicitor
Rachel has 24 years experience as a solicitor in Victoria, New South Wales and South Australia. She is also an accredited National Mediator, Arbitrator and Federally Registered Family Dispute Resolution Practitioner.
Rachel believes that it is important to listen to her client and try to resolve matters as early as possible. She understands it’s more important to move on with your life rather than be involved in endless legal proceedings.
“I had a criminal matter handled by Rachel. She went above and beyond and not only got me a really good result but she also provided support for family through the whole ordeal which isn't part of her job but yet she did it anyway.”
- Brock H
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Learn More About Property Settlement
The Australian Family Law Act 1975 is the federal law that governs all family law matters, including property settlements, divorce, parenting arrangements, and spousal maintenance.
The Act provides a framework for resolving disputes in family law courts and making decisions that are in the best interests of the parties involved, especially children.
During a property settlement matter, the Act can help by providing rules and guidelines for the division of property between the parties. The Act requires the court to consider a range of factors, including the contributions of each party to the relationship, their future needs and earning capacity, and the welfare of any children, before making a decision about the division of assets.
The Act also recognises the need to provide for any children of the relationship, and how this may affect property division.
The timeline for property settlement depends on various factors such as the complexity of the case, the number of assets involved, and the willingness of both parties to cooperate for a fair property settlement. In some cases, property settlement can be resolved in a matter of weeks, while other cases may take several months or even years to reach a resolution. It is important to note that each case is unique, and the timeline for property settlement can only be determined once we have thoroughly reviewed your case.
When it comes to dividing property in a settlement, various factors are taken into consideration. These include the length of the relationship, the income and earning capacity of both parties, all the property contributions made during the marriage, and the needs of each party moving forward. Property can be divided in various ways, from a 50/50 split to a more complex division of assets. Our lawyers will work with you to ensure that your best interests are protected throughout the property settlement process.
When a relationship ends, the division of property and assets can be a complex process. The Federal Circuit and Family Court uses a combination of methods to determine the division of assets in both marriage and de facto relationship breakdowns. This process takes into account a range of factors, including the length of the relationship, each party’s contributions to the relationship, earning potential, and the needs of any children involved. By understanding the factors considered in property settlement, individuals can better navigate the process and work towards a fair and equitable resolution.
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