Property settlement is the process of separating and dividing your finances and assets post-separation.
This can occur at any time after separation but must occur within 12 months of a divorce order or within two years of separation in a de-facto relationship.
There are a range of matters that should be taken into account when determining a party’s entitlements to property. It will not always be a 50:50 division, and it is therefore important that you obtain advice from an experienced family lawyer who can explain your true entitlements and provide you with specific advice based on your personal circumstances.
Some misconceptions about Family Law property settlements:
Often in the breakdown of a relationship, when property settlements are discussed, advice from well-meaning friends and family can be misguided by common urban myths. Some of the misconceptions regarding property settlements include:
– That I can resolve my property settlement without a Court Order or Financial Agreement
– You don’t need to do a property settlement unless you own a house I owned it before the relationship therefore it’s mine free from any claim from my ex-partner
– My name is not on the title of the house or mortgage and therefore I have no rights to the house
– I worked hard in this business and it’s mine free from any claim from my ex-partner
– I’ll lose my right to bring a claim for a property settlement if I leave the home
– I get to keep my inheritances and gifts I receive free from any claim from my ex-partner
– It’s essential that any property settlement agreement reached is formalised by way of Consent Orders through the Federal Circuit and Family Court of Australia (FCFCOA), or in some situations through a Binding Financial Agreement.
Family Law Consent Orders
When former parties to a marriage or de-facto relationship reach a property settlement agreement, an application can be made to the Court to formalise that agreement by making a Court Order that is referred to as a Consent Order.
You don not need to personally appear in court to obtain a Consent Order, and neither does your lawyer. The application that is filed in the Court is reviewed by a Registrar of the Court to determine whether it is just and equitable (fair), before it is made as a Consent Order.
Parenting Orders can also be made by the Court as Consent Orders. This means that an Order can be made by the Court which covers both your property settlement and children’s issues.
A filing fee is payable upon the filing of an Application for Consent Orders.
Binding Financial Agreements
A Binding Financial Agreement (BFA) is an agreement entered into between a couple to determine how their property and finances will be divided in the event of separation.
These agreements can also cover maintenance and be entered into before, during and after a de-facto relationship or marriage.
A BFA entered into before a marriage or de-facto relationships is intended to prevent the parties from subsequently bringing a claim in Court for property settlement, or spousal maintenance if the parties separate.
The Agreement sets out what will happen to each of the parties’ assets, liabilities and financial resources in the event that they separate; that is, who gets what.
There are strict procedural and advice requirements that must be adhered to when formalising a property settlement by way of a BFA. Each party needs to get independent legal advice about the effect of the agreement on their rights and the advantages and disadvantages of entering into the agreement.
The main difference between this agreement and a Consent Order is that a BFA is not reviewed by the Court and each party needs their own independent lawyer.
This can often be attractive to couple if they want their agreement to be kept out of the public record.
Paula Phelan is a Family Lawyer with Specialist Accreditation in this area from the Queensland Law Society. She has been a lawyer for over 26 years and is the director of Phelan Family Law, a Rockhampton legal firm specialising in Family Law only.
Website: phelanfamilylaw.com.au
