Property Settlement Lawyers
Property Settlement after Separation
After sharing a life together, it can be difficult to decide how to divide property between you and your former spouse or de facto partner. It’s not uncommon to fall into a dispute about dividing the property accumulated during the relationship.
Ultimately, the property you and your former spouse or de facto partner own, or have an interest in, needs to be divided in a way that is fair to you both.
A common misconception is that the Court will make a 50/50 split, with both parties entitled to half of the property. This is not the case. Instead, the Courts have developed a fairly rigorous method to work out how to divide the property at the end of a relationship, based on the laws as set out in the Family Law Act 1975. The method involves working out what we call contributions and future needs factors.
Talking with one of our family lawyers who has expertise in family law property settlements can help you protect your interests when it comes to dividing property.
If you’re ready to get professional family law advice, contact our family law firm, Ivy Law Group, on (02) 9262 4003 to arrange a free, no-obligation initial consultation.
What is property?
When making property settlement orders, the Court considers the property that each party brought into the relationship, along with the property purchased or acquired during the relationship and after separation.
Property includes things such as:
- any house or land, including the former family home or an investment property;
- a business, company or trust;
- cash and bank accounts;
- any debts such as mortgages, loans, tax or stamp duty obligations;
- cars, caravans and boats;
- superannuation entitlements;
- gifts, inheritances, lottery wins, compensation and insurance policy payouts;
- shares held in a publicly listed company;
- furniture and household items, including jewellery; and
- animals.
Keep in mind that it does not matter whether the property is in joint names or just one person’s name or is held with other people. All property is included in calculates in the net asset pool and with the intention of being distributed fairly.
What is a net asset pool?
A net asset pool is the value of the marriage or de facto relationship property after you deduct the liabilities from the assets and superannuation entitlements.
The formula used to calculate a net asset pool is:
total assets (including superannuation) – total liabilities = net asset pool
If you can’t agree on the value of an asset, that asset will need to be valued.
The net asset pool is established at the date of separation. However, as proceedings can be lengthy you may need to revalue assets during the process.
The rule of thumb is that Court Orders made to end the financial relationship between you and your former spouse or de facto partner are based on the value of the assets at the time when the Orders are made, meaning at the date a court hears your case at trial.
Disclosure obligations and valuations of property
Both parties have an ongoing obligation to provide each other with disclosure, and to make sure all valuations are current until they negotiate a settlement through a Binding Financial Agreement or final Orders are made – whether by a Court or by consent.
Disclosure obligations for property settlement matters
The Federal Circuit and Family Court of Australia rules govern this duty of disclosure.
Disclosure helps you, your family lawyer and the Court gain an understanding of what makes up the net asset pool, and the true financial position of the relationship.
Some of the documents you are required to give to the other party are copies of:
- tax returns for the last three financial years;
- your most recent superannuation statement;
- any bank statements you have an interest in for the past 12 months, including bank accounts, credit card statements, mortgage accounts and loan account statements;
- any business activity statements for the past 12 months;
- in the event you have any interest in a corporation, trust or partnership, the following documents:
- financial statements for the past three financial years
- tax returns for the past three financial years
- trust deed
- if you are in receipt of any wage or salary payments, your three most recent pay slips;
- details of any shares or investments you have, together with any current shareholding statements;
- valuations for any property you have an interest in, whether residential or commercial and including cars, caravans and boats; and
- information on any property disposed of during the year leading up to the date of separation and since the date of separation.
It is in your best interests to ensure proper disclosure is made by you and your former spouse or de facto partner. Complete disclosure is the only way to determine the accuracy of the values contained in the net asset pool, which form part of your Application for Consent Orders, Binding Financial Agreement, or the Court documents you prepare when you commence proceedings. It will also ensure that you have a proper understanding of the effect of the agreement reached.
Also, keep in mind that if the Court considers your disclosure obligations have not been met, then they have the power to make costs orders against the defaulting party, and set Orders aside (including final orders). This also means the Court will not make orders, even if they are consented to by both parties, until it is satisfied with the disclosure and can determine that the division of the property is just and equitable.
If your former spouse or de facto partner doesn’t comply with their duty to provide disclosure documents, and Court proceedings have started, you can issue a subpoena through the Court to have the body or institution with access to the documents be required to produce them, or you could request the court to make Orders requiring disclosure of specific material by the non-disclosing party.
Valuations
Valuations are used to assist with property settlement negotiations or to assist the Court when making final Orders.
If you and your former spouse or de facto partner agree on the value of the assets, liabilities and superannuation entitlements, then you are not obligated to have the property valued.
However, if you can’t agree on the values of any joint or individual property, independent experts will need to be hired to value the property. It is common practice for both parties to share the costs of any joint valuations obtained.
To ensure the Court accepts evidence of a valuation, the valuation should be up-to-date and done by a valuer who is appropriately qualified to value the specific asset or liability.
Find out more about how subpoenas work in family law proceedings or contact Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation.
Superannuation valuations
Valuing your superannuation entitlements is fairly simple.
You should obtain and complete a Superannuation Information Request Form and Form 6 Declaration. You can obtain the form directly from your superannuation fund or from the Federal Circuit and Family Court of Australia’s website. The completed form must be sent to the trustee of your superannuation fund. Some funds charge a nominal fee to process this request.
The valuation provided from the superannuation fund will, in most circumstances, be enough to satisfy your disclosure obligations.
In more complex superannuation matters, you may need to obtain an expert valuation. For these matters, you will need to get family law advice.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003 or submit an online enquiry.
Methods of resolving property settlement and spousal maintenance matters
Negotiation
Negotiations about property settlement matters and spousal maintenance matters can happen between you and your former spouse or de facto partner directly or you can hire family lawyers to handle negotiations.
Negotiations can happen in writing, verbally or, where appropriate, in person.
If you are having trouble reaching an agreement in relation to property and money matters, we recommend you get independent legal advice to assist in your negotiations. It is better for everyone – especially any children of the relationship or who are in some way involved – to reach an agreement rather than commence Court proceedings.
However, once an agreement is reached by way of negotiation, the agreement is not binding or enforceable on the other party. Steps can thereafter be taken to formulate the agreement reached in negotiation into either an Application for Consent Orders or a Binding Financial Agreement that is binding on both the parties.
For help in negotiating family law property settlement and spousal maintenance matters, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
Mediation
Mediation is a well-established and popular dispute resolution process for parenting, property and financial matters.
This process involves face-to-face discussions between you and your former spouse or de facto partner, usually with your family lawyers present. A jointly-appointed mediator is also present and assists parties to find common ground in order to construct a lasting agreement.
In circumstances where there are allegations of family violence or risk, shuttle mediation can occur, where the parties do not need to be in the same room at any time throughout the mediation. This usually involves the family lawyers and the mediator coming together and attending to the mediation while the parties remain in separate rooms, the family lawyers would then engage with their client’s separately and to limit direct communication between the parties.
More recently, following the impacts of the Covid-19 pandemic, mediations have been conducted via electronic means including by utilising video conferencing technology (i.e. Microsoft Teams, or Zoom).
The mediator is usually a senior member of the profession, who may be a former Judge, barrister, or experienced solicitor.
The mediation process is most successful when:
- the parties agree on property value or have organised valuations for any property where a value has not been mutually agreed;
- the parties have minimal to moderate positions in respect of their individual contributions at the commencement of the relationship, during the relationship, and after separation (if any);
- the ongoing expenses and needs of the parties have been addressed in advance;
- both parties are prepared to make sensible compromises to resolve the matter.
In most circumstances, the cost of the mediator’s fees are shared equally between you and your former spouse or de facto partner.
Arbitration
Arbitration is a confidential process that assists parties to resolve property settlement and spousal maintenance matters.
Arbitration involves a neutral third party – the Arbitrator – who meets with you and your former spouse or de facto partner (and usually your legal representatives) to consider the evidence and arguments in dispute.
The Arbitrator, who is usually a senior barrister or a former Judge, makes an informed decision to resolve the dispute. The decision is called an award and is legally binding once it is registered with the court.
The arbitration process is generally more time and cost-effective than commencing proceedings and going to trial. The process is also more flexible and can accommodate any other needs or requirements.
Collaborative process
The collaborative process is commonly referred to as the “respectful divorce process”. It is a very different form of dispute resolution process.
This process requires you and your former spouse or de facto partner to make a commitment to not commence (or threaten to commence) Court proceedings for your parenting matters.
Instead, you both, with your family lawyers, have face-to-face meetings to reach an agreement. These “round table” discussions include, where appropriate, accountants, financial planners and counsellors. This allows you to reach an agreement that is mutually acceptable without attending Court.
Once an agreement has been reached, your family lawyers will assist you in formalising the agreement and lodging it with the Court.
We have reached an agreement about property matters: How to formalise property matters
If you and your former spouse or de facto partner have been able to reach an agreement without the Court’s assistance, there are three options to formalise this agreement:
- Informal Agreement
- Consent Orders
- Binding Financial Agreement.
Informal Agreement
You are not required to have a formal agreement or go to Court when you are dividing property between you and your former spouse or de facto partner.
However, keep in mind that an informal agreement will not be legally binding. This means that if either you or your former spouse or de facto partner fail to follow the terms of the agreement, there is no way to enforce those terms.
Ultimately, entering into an informal agreement means:
- you may not receive what you are entitled to or have agreed to receive
- one of you could bring an application with the Court to commence proceedings at a later date (provided it is within the relevant time limitations, or you are granted leave by the court to issue the proceedings outside of time due to extenuating circumstances that caused the delay and provided the court does not consider there will be hardship to the other person if they allow it).
Consent Orders
Consent Orders can deal with any financial matters, including spousal maintenance matters, the splitting of superannuation and the transfer or sale of any property.
You can put the terms of your agreement into Consent Orders, which are governed by the Family Law Act 1975, by filing the following documents:
- Application for Consent Orders
This sets out details for each party (and the children under 18 years of age, if any), the assets, liabilities and superannuation entitlements of each party, and the agreement you are seeking.
- Minutes of Orders
This details the agreement reached for the Court’s approval.
You’ll also need to pay a filing fee. If you have a concession card this may reduce the filing fee payable.
The Judicial Registrar will review the terms of the agreement and, if considered to be fair to both parties in the circumstances, will make the Orders binding. The parties do not need to attend Court however both parties will be bound by the terms of the agreement and neither party will be able to make a future claim on the property.
For family law advice tailored to your circumstances and or family law dispute, contact the family lawyers at Ivy Law Group on 02 9262 4003.
Time limitations for Consent Orders
An application for Consent Orders for property settlement or spousal maintenance must be made within:
- one year from the date of divorce for married couples
- two years from the date of separation for de facto couples.
If an agreement can’t be reached, you can make an application to the Court to commence proceedings in the Federal Circuit and Family Court of Australia.
How can a Court set aside or change Consent Orders?
The only way Orders for property settlement can be “set aside” (meaning they are cancelled) or changed by the Court are if one of the following occurs:
- a miscarriage of justice (by fraud, duress, physical or mental harm, suppression of evidence, the giving of false evidence or any other circumstance)
- it is impossible for either party to complete the terms in the Orders (in the circumstances that have arisen since the Orders were made)
- a person has failed to meet their obligations which are in the terms of the Orders and in such circumstances it is only fair to vary the Orders or set aside the Orders and make other Orders in place of the existing Orders
- circumstances of an exceptional nature relating to the care, welfare and development of a child (under the age of 18 years or an adult child with a disability) have arisen since the Orders were made, by which the child, or the primary carer of the child, will suffer hardship if the court does not vary the Orders or set aside the Orders and make another Order in place of the existing Orders
- you and your former spouse or de facto partner consent to the alteration.
Do I have to pay transfer duty (formerly stamp duty) if there is a transfer or sale of a property in Consent Orders?
One of the many benefits of formalising a property agreement, whether by entering into Consent Orders or a Binding Financial Agreement, is that any transfer of property, including the transfer of the former matrimonial home, an investment property, or any other property, will be exempt from stamp duty if it is transferred to a party to the relationship, or a child of the relationship, or a trustee of the child of the relationship.
Binding Financial Agreement
Alternatively, the terms of the agreement can be put into a Binding Financial Agreement, which is also governed by the Family Law Act 1975.
The Court does not approve, consider, or review, a Binding Financial Agreement and there is no requirement for the net asset pool to be divided in a just and equitable way. In this way the parties are at liberty to reach any form of financial agreement independent from the Court.
Financial agreements can be entered into during the following periods:
- before entering into a marriage or a de facto relationship ( also known as “prenuptial agreements” or a “prenup ”)
- during a marriage or a de facto relationship
- after a marriage or a de facto relationship has ended.
Both parties are required to have legal representation prior to signing a Binding Financial Agreement and to take independent legal advice in respect of the Binding Financial Agreement. The document must also be drafted to comply with certain requirements for it to be legally binding.
Spousal maintenance matters can also be dealt with in a Binding Financial Agreement after the breakdown of a marriage or de facto relationship.
If you’re ready to get professional family law advice and help, contact the family lawyers at Ivy Law Group on 02 9262 4003 to arrange a free, no-obligation consultation.
Time limitations of Binding Financial Agreements
A Binding Financial Agreement can be entered into before, during or after a marriage or a de facto relationship.
If made after marriage, the Binding Financial Agreement must be made within 12 months of an Order of Divorce or within two years after the date of separation of a de facto relationship, unless otherwise agreed.
How can a Binding Financial Agreement be varied?
The Family Law Act 1975 requires that if any changes are to be made, then an entirely new agreement needs to be entered into which completely replaces the earlier financial agreement.
Ivy Law Group family lawyers do not consider it possible to enter into a new Binding Financial Agreement which only varies part of an earlier Binding Financial Agreement.
The only way that a Binding Financial Agreement can be set aside or changed is by entering into:
- a later Binding Financial Agreement, which includes a clause that refers to and thereafter terminates the previous agreement
- a Termination Agreement, which terminates the earlier agreement.
We CAN’T reach an agreement about property matters: What happens next?
If an agreement can’t be reached about your property affairs by way of negotiations or mediation, you will need the Court to make an Order on your behalf. The Court will divide your property interests in what is called a just and equitable (otherwise, fair and reasonable) manner based on the circumstances of your marriage or de facto relationship and the parties future needs.
Before making an application to commence proceedings, you will need to engage in the pre-action procedures required. These procedures can be found in rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).
The aim of the procedures is to ensure that the prospective parties have taken all steps to resolve their matter, and in circumstances where the matter cannot resolve then, that they have taken steps to resolve some of the issues that were in dispute, with the balance to be dealt with by the Court.
This approach has three main goals:
- limiting the legal costs of the parties;
- resolving the matter quicker; and
- ensuring Court resources are appropriately allocated.
The Court considers that to be seen to have taken ‘genuine steps’ to resolve a dispute all prospective parties must:
- have read the pre-action procedures;
- made inquiries about dispute resolution services, and invited (if safe to do so) the other parties to participate in the dispute resolution service or process. These services include family counselling, negotiation, mediation and/or arbitration.
- In circumstances where dispute resolution is unsuccessful, write to the other parties and set out:
- their claim (including the issues in dispute and future intentions);
- the Orders they would seek if Proceedings were commenced; and
- exploring options for settlement, including making a genuine offer to settle the matter.
In addition, this correspondence should provide a nominated time period within which a response ought to be provided (no less than 14 days), and a copy of the Court’s ‘Before you file – pre-action procedure for financial cases’ brochure. This correspondence is known as a Notice of Intention.
- comply, as far as practicable, with the duty of disclosure by exchanging financial material as well as other relevant documents.
A reply to the notice set out at Step 3 ought to be provided. In circumstances where the other party does not accept the offer made in the Notice of Intention then their response must (in order to continue to comply with the pre-action procedures), include:
- the issues in dispute;
- the orders they will seek if a proceeding is started;
- a genuine counter offer to resolve the issues; and
- a period of time to respond (usually no less than 14 days after the date of the letter).
If a response to the Notice of Intention is not received then there is no further obligation to engage in the pre-action procedures and a party can commence proceedings having satisfied their obligations. Alternatively, where a response is received, and further correspondence is exchanged, but an agreement cannot be reached to resolve the matter, then the parties are at liberty to file their Application having complied with the pre-action procedures.
Some Applications can be exempt from the pre-action procedures. A prospective party can immediately file an Application with the Court in financial matters where:
- there are allegations of family violence, or a risk of family violence;
- the application is urgent;
- the applicant would be prejudiced by complying with the pre-action procedures;
- if a previous family law application has been filed by one of the parties in the last 12 months;
- if the proceeding is a child support application or appeal; or
- if the proceeding involves a court’s jurisdiction in bankruptcy under section 35 or 35B of the Bankruptcy Act 1966.
If you would like our family lawyers to assist you with preparing an application for property settlement and/or spousal maintenance, get in touch on 02 9262 4003 or submit an online enquiry.
If you choose to represent yourself in Court proceedings, we highly recommend you seek legal advice before you do so. You should completely understand your rights, responsibilities and obligations prior to filing your application and throughout the entire process.
For family law advice tailored to your family law dispute and circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.
Making a Court application for property proceedings
When you make an application to the Court to commence proceedings for property settlement matters, including spousal maintenance, you must file the following documents with the Court:
- An Initiating Application (Family Law)
This sets out the details of the relationship, and the final Orders you are seeking in relation to the division of the net asset pool and spouse maintenance payments. You can also seek interim Orders, such as attending family law mediation, obtaining joint valuations, payment of spouse maintenance for a period of time, selling a property, or any other order concerning something that will occur before final orders are made.
- Genuine Steps Certificate
This document confirms that you have complied with the pre-action procedures listed in Schedule 1 of the Family Law Rules or that an exemption is otherwise sought.
- Financial Statement
This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and shows why a party needs to claim spousal maintenance.
- Financial Questionnaire
Sets out the party’s position in respect of assets, contributions and future needs.
- A copy of any family violence order that may exist.
- An Undertaking as to Disclosure.
- An affidavit is also required where:
- the Financial Statement will not fully discharge the duty to make full and frank disclosure;
- the application seeks interim orders or relief;
- if the application seeks a search order; and
- if the application seeks a freezing order.
If the Application seeks final orders only, then an Affidavit is not necessary. An Affidavit is a written statement of evidence, that sets out the factual situation including reasons why the Court should make the Orders you are seeking.
You will also need to pay a filing fee. If you are experiencing financial hardship or are a concession card holder an exemption or a reduction of the filing fee may be granted.
Once the documents are filed the following documents need to be served on the other party:
- Initiating Application (Family Law);
- Any affidavit;
- Financial Statement;
- Financial Questionnaire;
- Genuine Steps Certificate; and
- the Marriage, Families and Separation brochure.
You can serve the documents by hand, post, email, facsimile or upon the solicitors acting for the other party (if they have agreed to accept service).
You can commence proceedings with or without a solicitor. However, given the complexity of family law matters, we recommend you obtain family law advice before commencing family law proceedings.
You should understand how the Court process works and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by the Court.
For legal advice tailored to your family law dispute and circumstances, call our family lawyers on 02 9262 4003 or submit an online enquiry.
Response to Application for Property Settlement Proceedings
If you have been served with an Initiating Application for Property Orders, you will need to file the following Court documents in response, setting out your position:
- Response to Initiating Application
This sets out the relief you would seek the Court make. It could include some of the same orders that were sought in the Initiating Application, or completely different orders. These Orders could be sought on an interim or final basis. The Response also allows you to correct any details about the relationship that had previously been provided by the Applicant on the Application.
- Genuine Steps Certificate
This document confirms that you have complied with the pre-action procedures listed in Schedule 1 of the Family Law Rules or that an exemption is otherwise sought.
- Financial Statement
This details the Applicant’s financial position (income, expenses, assets, liabilities and superannuation entitlements), the known asset pool, if possible, and shows why a party needs to claim spousal maintenance.
- Financial Questionnaire
Sets out the party’s position in respect of assets, contributions and future needs.
- An Undertaking as to Disclosure
- An Affidavit where:
- the Application seeks interim orders and you object to these, or seek further interim orders of your own;
- the Response seeks a search order; or
- the Response seeks a freezing order.
If the Application seeks final orders only, and your Response seeks Orders on a final basis only, then an Affidavit is not necessary.
An Affidavit is a written statement of evidence, that sets out the factual situation including reasons why the Court should make the Orders you are seeking.
You will also need to pay a filing fee. If you are experiencing financial hardship or are a concession card holder an exemption or a reduction of the filing fee may be granted.
These documents will need to be filed and served on the other party in the proceedings within 28 days of being served with the Application. Where the Order requires the flagging or splitting of Superannuation interest, then the Trustee of the Superannuation fund must also be served with a copy of the Application or Response.
Given the complexity of family law matters, we recommend you obtain family law advice before responding to an Initiating Application. You should understand how the Court process operates and get family law advice about what range of outcomes you would expect in your circumstances if your matter was to be decided by a Court.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
The Court process
What happens in property settlement matters?
Non-urgent property settlement matters
Every family law matter is different and the outcome will vary depending on the specific circumstances of your marriage or de facto relationship.
When commencing proceedings, there is a seven-step process:
Step 1: Pre-action procedures
Before making an application to commence proceedings, you will need to engage in the pre-action procedures required. These procedures can be found in rule 4.01 and Schedule 1 of the Federal Circuit and Family Court of Australia (Family Law) Rules 2021 (Family Law Rules).
The aim of the procedures is to ensure that the prospective parties have taken all steps to resolve their matter, and only in circumstances where the matter cannot be resolved, will the matter will be dealt with the Court.
This approach has three main goals:
- limiting the legal costs of the parties;
- resolving the matter quicker; and
- ensuring Court resources are appropriately allocated.
The Court considers that to be seen to have taken ‘genuine steps’ to resolve a dispute all prospective parties must:
- have read the pre-action procedures;
- made inquiries about dispute resolution services, and invited (if safe to do so) the other parties to participate in the dispute resolution process. These services include family counselling, negotiation, mediation and/or arbitration.
- Issue a Notice of Intention to Commence proceedings to the other party.
- comply, as far as practicable, with the duty of disclosure by exchanging financial material as well as other relevant documents.
Step 2: Notice of Intention to claim and disclosure obligations
Intention to claim
Step 3 of the pre-action procedures set out above requires prospective parties, if an agreement can not be reached, or one party does not participate in negotiations or mediation, to write to their former spouse or de facto partner prior to commencing Court proceedings.
This correspondence is known as a Notice of Intention to commence, and sets out:
- the person’s claim (including the issues in dispute and future intentions);
- the Orders they would seek if proceedings were commenced;
- exploring options for settlement, including making a genuine offer to settle the matter;
- a nominated time period within which a response is to be provided (no less than 14 days), and a copy of the Court’s ‘Before you file – pre-action procedure for financial cases Brochure’.
A response to the Notice of Intention must be provided. In circumstances where the other party does not accept the offer made in the Notice of Intention then their response must, (in order to continue to comply with the pre-action procedures), include:
- the issues in dispute;
- the orders they will seek if a proceeding is started;
- a genuine counter offer to resolve the issues; and
- a set period of time for the initial person to respond (usually no less than 14 days after the date of the letter).
If you do not receive a response within the nominated period of time, you can commence proceedings.
Disclosure obligations
The Court states that, when commencing proceedings, each party has a duty to provide “full and frank” disclosure to their former spouse or de facto partner. That means, you must provide all information and documents relating to your earnings, income, interest, property interests and any other financial resources. This applies whether you have an interest in, or own or control, any property, financial resources and earnings, or hold property in corporations, trusts, and companies.
You must also disclose any information about the disposal of any property, whether by sale, transfer, assignment, gift or inheritance, that occurred 12 months prior to the date of separation until Court proceedings have ended. This means, you have an ongoing obligation to provide disclosure to your former spouse or de facto partner. You can learn more about this here.
Step 3: File the Initiating Application
The Initiating Application (along with the various documents that need to accompany the Application) is filed in the Federal Circuit and Family Court of Australia Division 2. Upon filing, the Court’s National Assessment Team may then consider the matter, and for complex property matters, matters of extreme risk of harm, or otherwise matters whereby Division 1 of the Court holds exclusive jurisdiction the matter, will transition into Division 1.
The other party will need to file a Response to the Initiating Application, and other supporting documents required by the Rules 28 days after being served with the Application.
Step 4: First Court Event
When you commence family law proceedings, you will be given a date for your first Court hearing. You and your family law representative will need to appear before a Judicial Registrar. If the Respondent fails to file a Response or appear at the first Court hearing of the matter, the Court may make Orders on their behalf in their absence. If the party continues to refuse to participate in the proceedings and/or comply with orders to do certain things such as file a Response, it may result in orders being made on a final basis by a Court, thereby finalising a family law matter once and for all.
At the first court event, the Judicial Registrar will usually:
- require an update on the progress of the matter to date and a brief outline of the issues in dispute.
- make orders and directions that allow the matter to progress including orders for valuations, filing of material, issuing of Subpoenas; and
- allocate the matter for either Court based Family Dispute Resolution (FDR) or refer the matter for private FDR.
If there are complex issues that require urgent attention by a Judge or Senior Judicial Registrar, the matter can also be listed for an interim hearing.
If the Respondent fails to file a Response or appear at the first Court hearing of the matter, the Court may make Orders on their behalf in their absence if they refuse to participate in the proceedings and or comply with orders to do certain things such as file a Response. This may even result in orders being made on a final basis by a Court, thereby finalising a family law matter once and for all.
Step 5: Attendance at Court Ordered Dispute Resolution
Usually at the first Court event the Judicial Registrar will also make an order referring the matter to Dispute Resolution. The Court, in considering evidence before it relating to the finances of the parties and any allegations of family violence, will determine whether the matter should be referred to either internal or external dispute resolution.
Internal Dispute Resolution options include:
- Conciliation Conferences.
- Judicial Settlement Conferences.
- Mediation.
The External Dispute Resolution options include:
- Private mediation.
- Private, legal aid facilitated or community-based family dispute resolution.
- Arbitration, with the consent of the parties.
Where the Court determines that the parties must engage in external dispute resolution, specific Orders will be made to assist the parties in choosing a Mediator or Arbitrator, and often the timeframe within which the dispute resolution process is to occur.
This Court Ordered Dispute Resolution Event usually occurs within five (5) months of the commencement of proceedings.
If an agreement can be reached, Ivy Law Group’s family lawyers can assist with the drafting of a proposed ‘Minute of Orders’ setting out the agreement reached, as well as a letter setting out the facts and background that would allow the Court to consider and determine whether the agreement is just and equitable. If the Court is satisfied with the Minute provided, then it will make the Orders and they will be binding on both parties.
If you are self-represented (meaning you are acting for yourself) you may be required to attend at the next Court event and provide the Judicial Officer with a a copy of the signed Minute of Orders for review and approval.
If an agreement cannot be reached, the matter will return to Court for its next listing.
Step 6: Compliance and Readiness Hearing
After the parties have engaged in Court mandated Dispute Resolution, the matter will be listed for a Compliance and Readiness Hearing. This Hearing is usually conducted by a Judge that is independent of the matter, and namely a Judge who is unlikely to hear the matter at Trial.
At this time, the parties will need to provide a Genuine Steps Certification and the Court will then assess the information at hand to determine:
- what issues remain in dispute between the parties;
- whether the matter is ready to proceed to Trial i.e. have all the valuations and expert reports/evidence been obtained;
- Whether the parties have complied with all of the Court orders, and particularly with regards to filing of Court material;
- how many days of hearing the matter will require; and
- Whether there are any other services or avenues that can be utilised by the parties to settle the dispute before the Trial.
If the Judge considers that the matter is ready to proceed, then Orders will be made to allow the parties to prepare for Trial. These might relate to updated valuations, additional disclosure to be made between the parties, or directions as to how the parties will prepare for the Trial.
Step 7: Trial Management Hearing
If your matter is listed in Division 1, the matter may also be listed for a Trial Management Hearing.
This Court event occurs at the discretion of the Trial Judge.
The purpose of this Court event is to make trial directions. Where Trial directions have already been made then the Trial Judge will ensure there has been compliance with these directions, and that the matter is ready to proceed to Trial.
Step 8 : Trial – Final Court Hearing
All documents required for Trial must either be filed electronically or provided to the Court electronically.
The Court will consider all evidence put before it to make a fair and just decision about the distribution of the net asset pool and any Spouse Maintenance Orders sought.
The Court will thereafter aim that Judgement be delivered within 3 months of the conclusion of the Trial.
Urgent property settlement matters
An urgent family law property application may be made if your former spouse or de facto partner:
- sells or transfers a property, or you have strong evidence to suspect they will, that they or you have a caveatable interest in, or
- there are any other urgent matters necessary for a Judge to consider an urgent application.
If you need to commence an urgent property family law matter, you need to follow steps 3 through to 7, as detailed above.
Other circumstances that are not categorised as urgent, but where a Court may accept that circumstances did not allow for complete compliance with pre-action procedures, include where one party:
- does not comply with their disclosure obligation despite repeated requests; or
- does not respond to your attempt to settle property (and spousal maintenance matters) by engaging in negotiations or otherwise refusing to engage in family dispute resolution (e.g. mediation).
In these situations, a party will still be required to serve a Notice of Intention to Claim (See step 2 above) but can thereafter file an Initiating Application, with an Affidavit and Genuine Steps Certificate (as well as other mandatory Court forms), that set out the circumstances surrounding the filing of the Application and the conduct of the other party.
Advice about urgent family law property matters will vary depending on the complexity of your situation.
For family law advice and help tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
How the Court decides a fair and just property settlement
STEP 1: Net asset pool and valuation of assets
Determining the net asset pool available for distribution between the parties involves identifying and valuing all assets, liabilities and superannuation entitlements that both parties have an interest in – whether jointly, individually or with other people. This includes interests in trust, companies, partnerships or any other corporate entity.
The Court has the power to “lift the corporate veil” to determine whether any other entities are also, in effect, controlled by one of the parties. If so, these will be included in the net asset pool available for division.
Unless an agreement can be reached as to the value of any major assets, including real estate, company or corporate partnership interests, and motor vehicles, the parties will need to obtain formal valuations of the item(s), so that the Court can be satisfied with the value of the asset. Often these valuations cant be obtained jointly and the parties are in a position to save costs by sharing in the valuer’s fees while at the same time obtaining an independent valuation.
Furniture and household effects are valued at their second-hand market value, or according to the amount that a third party is prepared to pay for the items on a platform such as ‘Gumtree’ or ‘Facebook Marketplace’ – not the purchase price or the insurance value of the items.
Circumstances where the Court may not accept the second-hand value of furniture is where the furniture or item is considered an antique or has a special value. In those instances, that item will need to be independently valued, as you would do with houses and interests in companies.
It should be noted, however, that the Court is often unwilling to become involved in the division of items of furniture.
In these instances, if an agreement as to the value of the furniture cannot be reached prior to trial, the Court may adopt a ‘two-list’ approach where each party drafts a list of furniture items and comes to an independent agreement as to which items will be retained by each one of them. If an agreement still cannot be reached, the Court may simply order that all the items be sold and the proceeds divided equally, unless it is determined that a particular item was deemed to have been directed to one party as a gift or an inheritance (at which point the Court may order that the recipient of that item retain it).
STEP 2: Contributions
The Court will then determine what contributions were made by each of the parties.
Contributions include those that were made at the commencement of the relationship, during the relationship and after separation.
The Family Law Act 1975 requires the Court to consider:
- Financial contributions
These can be made directly by a party to the marriage or de facto relationship, or indirectly on their behalf, towards the purchase, maintenance or improvement of the asset pool. They include:
- direct financial contributions, such as salary or wage earnings
- indirect financial contributions, such as gifts or inheritances from family.
- Non-financial contributions
These can be made directly or indirectly on behalf of a party to the marriage or de facto relationship towards the purchase, maintenance or improvement of the property. They include:
- direct non-financial contributions (for example, if either party acts as the project manager for the building of a new home or renovations to a property, or assists with renovating part of the property)
- indirect non-financial contributions (for example, if the father of one party builds a deck on the current property).
- Homemaker and parenting contributions
These are any contributions made to the welfare of the family, including contributions made as a parent (delivering the children to school or extracurricular activities, bathing or feeding the child or children) or homemaker (i.e. attending to household chores, grocery shopping).
All contributions are given the same weight – no one type of contribution is more valuable than another. For example, if one party made significant financial contributions and the other made significant homemaker and parenting contributions to the marriage or de facto relationship, the Court would generally consider these contributions to be equal.
The Court will determine what contribution, in percentage terms, each of the parties has made to the net asset pool available for division.
It’s important to note that although you may not have made a direct contribution to an asset, for example because the other person brought it into the relationship and it was controlled by them throughout, the Court might consider what it calls the “myriad of other types of contributions” (such as emotional support provided to the other party in their endeavours, or the management and the care of the children that allowed the other party to continue to contribute to the asset) that have had an indirect or causal relationship to that asset.
Additionally, the weight attributed to initial contributions, or assets brought into the relationship initially by one party, often fades away over time and particularly so in a long-term relationship.
Can there be negative contributions?
In most cases, contributions result in an increase in the value of the property.
However, in some cases, the value of the property may decrease due to certain actions or inactions. This is referred to as “waste” in relation to assets or “negative contributions” in relation to serious family violence.
Section 75(2)(o) of the Family Law Act 1975 states that a Court can take into account any other factor that it regards as relevant to the division of property, including “waste” and “negative contributions”.
Some examples of negative contributions and waste include:
- when serious family violence has impacted the victim to such a degree that they were unable to make substantial contributions or their contributions were made more difficult to complete
- \when one party’s actions resulted in a loss to the net asset pool, affecting both parties, including through gambling, extravagant discretionary spending, and poor business or financial decisions.
Running a waste or negative contributions argument, either in Court or during negotiations, can be difficult and complex, and is not merely a matter of demonstrating that a party has lost matrimonial funds in a particular manner.
We highly recommend you obtain family law advice from one of our experienced family lawyers in these circumstances.
For family law advice and help tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003 or submit an online enquiry.
STEP 3: Identify future needs factors
The Court then considers the future needs of both parties to the marriage or de facto relationship. The future needs factors the Court may consider are:
- the age and state of health of each of the parties
- the income, property and financial resources of each of the parties and the physical and mental capacity of each of them to engage in appropriate gainful employment
- whether either party has the care or control of a child of the marriage or de facto relationship
- commitments of each of the parties that are necessary to enable the party to support themselves and a child or other person that the party has a duty to maintain
- the responsibilities of either party to support any other person (for example, a new de facto partner or spouse)
- the eligibility of either party for a pension, allowance or benefits
- a standard of living that in all the circumstances is reasonable
- the extent to which the payment of maintenance to the party whose maintenance is under consideration would increase the earning capacity of that party (by enabling them to take a course or establish himself or herself in a business or otherwise obtain an adequate income)
- the extent to which the party whose maintenance is under consideration has contributed to the income, earning capacity, property and financial resources of the other party
- the duration of the de facto relationship and the extent to which it has affected the earning capacity of the party whose maintenance is under consideration
- if either party is cohabiting with another person and, in particular, the financial circumstances relating to that cohabitation
- any fact or circumstance which, in the opinion of the court, should be taken into account.
Once all relevant future factors are considered, the Court will determine whether a further percentage adjustment is required for either of the parties, and which will be added to their contribution based percentage entitlement.
STEP 4: “Just and equitable” division
Finally, the Court must consider whether the result reached, that is the percentage division of the net asset pool, is “just and equitable”. This means that the Court has to consider the practical effect of the Orders.
The Court will consider whether the adjustment that is sought, and the means by which this adjustment is to be achieved are suitable in the circumstances or whether a disadvantage is likely to arise for one or both of the parties.
For example, if there are enough funds in the net asset pool for a payment to one party for their interest in the former matrimonial home this could mean the need to sell the home and therefore displace one party (and possibly the children) could be avoided. If not, the Court will consider whether an order for the former matrimonial home to be sold with the net proceeds of sale to be divided between the parties is just and equitable.
The Court may also make a Spousal Maintenance Order as it considers “proper” when making final property settlement orders. Spousal Maintenance Orders can be a lump sum payment, the transfer of specific assets or periodic payments. The Court’s ultimate goal when making final property Orders is to sever the financial relationship between parties so that each party can move forward in their lives.
Time limitations for property settlement and maintenance matters
Property Settlement
An application for property settlement must be filed:
- De facto couples: within two years of the date of separation in a de facto relationship; or
- Married couples: within 12 months of the date upon which your divorce becomes final.
Spousal Maintenance
An application for spousal maintenance must be filed:
- De facto couples: within two (years of the date of separation in a de facto relationship; or
- Married couples: within 12 months of the date upon which your divorce becomes final.
Special Service
As soon as practicable, but no longer than 12 months, from the date of filing.
Application for Leave
If you fail to commence proceedings within the time limitations, then you must apply to the Court for permission to commence proceedings out of time. To do so, you will have to provide an explanation to the Court about why you failed to commence the proceedings within the required time and show that the failure of the Court to make an Order would cause you hardship.
Other considerations in property settlement matters
Family violence and negative contributions
In property settlement and spousal maintenance matters, the Court considers how much each party contributed, whether directly or indirectly, to the financial relationship. This can be done through financial contributions, non-financial contributions and parent and homemaker contributions.
The conduct of each party is usually not considered by a Court, unless there was serious family violence in a marriage or a de facto relationship that made the contributions of one of the parties more onerous. This can result in a “negative contribution” by the perpetrating party, though it can be a difficult thing to prove.
What is family violence?
The Family Law Act 1975 defines family violence as any behaviour that is violent or threatening, or any other behaviour that coerces or controls another member of the person’s family or causes that family member to be fearful.
The following are examples of family violence:
- assault (including physical, emotional, financial, sexual assault or other sexually abusive behaviour)
- stalking
- making repeated derogatory taunts
- intentionally damaging or destroying property
- intentionally injuring or causing death to an animal
- financial or social control or coercion, including:
- unreasonably denying financial independence (for example, by controlling what a family member spends or how they access their money)
- unreasonably withholding financial support for reasonable living expenses to a dependent
- preventing someone from making, or keeping connections, with their family, friends, culture or religion
- unlawfully depriving someone of his or her liberty.
The Court may consider other circumstances or behaviours that fall within the definition of family violence.
Does serious family violence affect the outcome of property settlement matters?
Even though the Family Law Act 1975 does not explicitly state that serious family violence can result in a negative contribution, the Court has the discretionary power to make any order it considers appropriate when making an adjustment of interests and deciding a fair property settlement.
Case law shows that judges are willing to determine that serious family violence can result in a negative contribution.
In 1997, the Family Court of Australia considered whether family violence could alter the outcome of a property settlement in the case of Kennon v Kennon.
In this case, the husband had a significantly higher income, but the wife had brought significantly more assets into the relationship. The wife alleged that the husband had caused serious family violence, which involved several specific encounters of physical violence. She argued that his conduct should result in an adjustment, in percentage terms, in her favour.
In making its decision, the Court considered whether:
- circumstances of “violent conduct” was established
- the violent conduct had a visible impact on the wife
- the wife’s contributions to the relationship had become significantly more difficult because of the domestic violence.
Ultimately, the Court found that a successful negative contribution argument, based on serious family violence affecting the victim’s contributions to the relationship to become more difficult, requires specific evidence to substantiate the argument. The Court made it clear that a successful negative contributions argument would only apply in rare circumstances.
In the later case of Baranski & Baranksi & Anor, the Court followed the Kennon decision but made it clear that family violence could be considered to make contributions more difficult regardless of whether the family violence happened during the marriage or de facto relationship or after the date of separation or divorce.
If you have suffered from significant family violence during your marriage or de facto relationship, and wish to run a negative contributions argument in Court, you will need to ensure that the Court is satisfied there is a causative link between the family violence and the loss that was suffered. You will need to provide sufficient evidence to support this argument, such as expert evidence from a psychiatrist or psychologist. If evidence can prove that loss has been suffered, then a Court will make an adjustment, in percentage terms, in favour of the person who suffered from the family violence.
Ultimately, it is the Court’s discretion as to whether the serious family violence is so significant it can be seen as a negative contribution. That means, the Court will make decisions on a case by case basis.
This argument is very difficult and complex to make before a Court due to the strict evidence required to meet the threshold.
If you have experienced, or continue to experience, serious family violence, then we highly recommend you get family law advice and contact Police. Contact our experienced family lawyers at Ivy Law Group on 02 9262 4003 to arrange a free, no-obligation initial consultation.
Children and property settlement matters
Will there be an adjustment if there are children in the marriage or de facto relationship?
When the Court is considering whether any adjustments, in percentage terms, can be made in relation to the future needs factors (section 75(2) Family Law Act 1975), it will take into account whether either party has:
- the care or control of a child of the marriage or de facto relationship
- any commitments and responsibilities to care and support any other person, including a child, from another marriage or de facto relationship (for example, child support or maintenance).
The Court has the discretionary power to make an adjustment to reflect the dynamic of the parties’ future needs to ensure that everyone is taken care of.
Alternatively, contributions can also be impacted by having a child or children in relationships. This is because where there is a child or children living as part of the family unit or household, there will be at least one (1) party who is responsible for the care of the child or children. In this way children could impact upon the contributions of parties to the relationship and in their capacity as a parent or caregiver.
Superannuation entitlements and splitting orders
What is superannuation?
Superannuation, or super, falls into the definition of property under the Family Law Act 1975.
The only difference between superannuation and other property is that superannuation is dealt with differently as it is held in a trust and every superannuation fund or SMSF has rules for how the asset can be accessed.
To learn more about how superannuation is decided in a property settlement, see our article: “Superannuation assets to become more accessible in family law cases.”
What is a superannuation splitting order or clause?
The Family Law Act 1975 governs superannuation splitting payments. Splitting superannuation entitlements applies to both married and de facto relationships, except in Western Australia.
When it comes to splitting superannuation after separation, this will form part of your overall property settlement agreement – regardless of whether you and your former spouse or de facto partner choose, or are ordered by the Court, to split superannuation entitlements.
It is important to understand that if a superannuation splitting payment has been agreed to or Court ordered, the benefit will not be made into a cash asset. The entitlement will remain in a superannuation trust, being either with the fund in which it was previously held by the paying spouse, or in a superannuation fund nominated by the recipient.
In this way, while the required proportion of one parties superannuation interest is transferred to the other party, it continues to be governed by superannuation laws until the recipient reaches retirement age. This also applies to Self-managed Superannuation funds where the trust may be wholly or partially held in cash.
How do I value a superannuation entitlement or interest?
Superannuation splitting legislation sets out the methods to determine the value of most superannuation funds, including both professional super funds and SMSFs.
For most funds, you must complete a Form 6: Superannuation Information Request Form and send it to the Trustee. The fund may charge a nominal fee, which will need to be paid at the time of the request.
If it is a simple valuation, the Trustee will provide you with a valuation of the asset. However, if the value of the superannuation is complex, you may need to get advice from an expert valuer to determine the value of the superannuation entitlement.
We recommend you seek family law advice to assist you in these more complex matters. Contact the family lawyers at Ivy Law Group on 02 9262 4003 for assistance.
How do I formalise my agreement?
There are two mechanisms available for formalising the settlement of family law property disputes:
- An Application for Consent Orders; and
- Binding Financial Agreement (BFA).
Binding Financial Agreement
This is a contract between you and your spouse that we can draft on your behalf. It does not require the approval of the Court or any other third party to be contractually binding upon you both. This means there is no determination as to whether the agreement is fair and reasonable, and an agreement that is more advantageous to one party over the other will not require justification.
While we can draft the document on behalf of one party, we are unable to act for both you and your spouse. In circumstances where we do meet with both you and your Spouse, then while we can draft the document, you will both be required to obtain independent legal advice as to the impact of the agreement on your rights and responsibility.
If we only meet with you, your spouse will be required to obtain their own independent legal advice and obtain a certificate to that effect from their legal representatives. If your spouse does not obtain independent legal advice as to the terms of the BFA then the agreement is void and unenforceable.
Additionally, a binding financial agreement can only set out the arrangement between you and your spouse in so far as it extends to your property/financial affairs.
Consent Orders
An application for Consent Orders can be made to the Court for review and approval. This includes the completion of a Court form, as well as the preparation of document setting out the Orders that you are asking the Court to make and which reflect the agreement reached.
The Court will consider whether the agreement reached is fair to both parties and will apply the four-step process when making its decision. Consent Orders can deal with parenting and property/financial matters.
Once the Orders are made, any breaches by either party can be referred to the Court for enforcement. This can be achieved without either you or your spouse attending Court.
If you and your former spouse or de facto partner can’t reach an agreement as to the division of your assets (or a parenting arrangement for the children of the relationship) you will require the Court’s intervention and to decide as to what each party should receive by way of an adjustment of property interests.
In order to commence this process, the Applicant will need to obtain Court Orders by initiating proceedings for property settlement matters. You will need to attend several Court events during this process.
Regardless of whether you enter into a Binding Financial Agreement or Consent Orders, or an order is made by the Court about superannuation splitting orders, the following must occur:
- Valuation of the superannuation entitlement in the superannuation fund or SMSF
- the superannuation fund or SMSF must be given a copy of the draft Orders or terms of the Financial Agreement (specific to the super split) to ensure that the Trustee is able to action the Orders or terms and give effect to the super splitting payment under their relevant rules
- once the Financial Agreement or Court Orders have been made, you must provide the trustee of the superannuation fund or the SMSF with a sealed copy of the Orders or a certified copy of the Binding Financial Agreement so that they can initiate the superannuation splitting payment.
Each fund will have a required timeframe for complying with the superannuation splitting orders or terms of the Financial Agreement.
Depending on your superannuation entitlements, it can be very difficult to properly formulate a superannuation splitting Order or terms relating to this issue in a Financial Agreement. We recommend you seek independent legal advice about the options available to you.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003 or submit an online enquiry.
Caveats on real property
What is a caveat?
A caveat is a legal notice, made by the Registrar of Titles, that is recorded on the title of a property.
By placing a caveat on a property title, for example on a house title, you are protecting your interest since the property is not able to be sold until the caveat has been removed.
Remember, the net asset pool is made up of all assets, liabilities and superannuation entitlements of both you and your former spouse or de facto partner, whether it is in joint names or in sole names. If you have a caveatable interest in a property you can apply to lodge a caveat over that property to protect your interest – even though you are not the registered owner of that property.
Once a caveat has been issued on a property, it remains in place for up to three months, or until an agreement has been reached or a Court Order issued to remove the caveat. Once this time period passes, the caveat will cease and the registered owner of the property may sell it or otherwise deal with it without your consent.
Do I have a caveatable interest in a property?
Determining whether you have caveatable interest in a property is a complex legal question.
You do not automatically have a caveatable interest over a property just because you were or are in a marriage or a de facto relationship.
What is important to note that in New South Wales, the Supreme Court has stated tome and tie gain in its judgments, that a right to bring a family law property claim, does not in itself create a caveatable interest.
A caveatable interest in a property may exist if you can prove that you have made:
- financial contributions to the property (for example, you have made payments towards the mortgage of the property or other financial contributions to the property, like renovations or maintenance)
- non-financial contributions to the property (this is more difficult to prove however you may, for example be found to have a caveatable interest in the property if there is provision of childcare).
We recommend you seek family law advice in relation to whether or not you have a caveatable interest in a property, as there are risks involved if the Court finds that you do not.
If the decision is that you do not have a caveatable interest then court proceedings should be commenced urgently and where the Federal Circuit Court and the Family Court have jurisdiction to order NSW Lands Services to place a caveat on title.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on (02) 9262 4003.
How do I remove a Caveat over a property?
There are several ways to remove a caveat, including:
- the person who lodged the caveat over the title can withdraw it
- by Order of the Supreme Court
- by cancellation of the caveat by a Registrar of the Family Law Courts
- allowing the caveat to lapse if Court proceedings have not commenced within three months.
Legal fees paid in property settlement matters
Legal fees paid by each party
The Family Law Act 1975 requires each party to proceedings to pay their own legal fees, unless certain exceptions apply. The Court has the discretion to make an Order for Costs.
When can a Judge make Costs Orders in property settlement proceedings?
If a Court believes there are circumstances that justify it doing so, it can make an Order for costs. Circumstances to be considered include:
- the financial circumstances of both parties
- whether either party is receiving funding from Legal Aid
- the conduct of the parties throughout the proceedings, including the conduct in relation to pleadings, particulars, discovery (disclosure documents), inspection, directions to answer questions, admissions of facts, production of documents and similar matters (that is, whether the parties followed the Court rules and procedures)
- whether the parties complied with the Orders
- whether either party was wholly unsuccessful in the Court proceedings
- any offers made by the parties and the terms or the offer
- any other matters that the Court considers relevant.
Issues that may arise from legal fees paid during property settlement matters
Issues may arise about the payment of legal fees during property settlement proceedings when one party, or both parties, argue about whether the paid legal fees should be added back into the net asset pool available for distribution.
If the paid legal fees are included in the net asset pool available for division, this can cause complications where one party has paid significantly more towards their legal fees from funds, or capital, available in the net asset pool.
How can Ivy Law Group help you?
Our family lawyers have extensive experience dealing with money and property matters and other legal issues surrounding family law. If you’d like help navigating your family law issues, contact our family lawyers at Ivy Law Group on (02) 9262 4003 to arrange a free, no-obligation initial consultation.
FAQs about money and property matters
No. If you are in a de facto relationship, whether same-sex or not, or you and your former de facto partner are in a registered relationship, you can apply for a property settlement and spousal maintenance by way of Consent Orders, Binding Financial Agreement or by commencing proceedings.
You are still entitled to your share of the house, even if you leave the property or it is not legally in your name. It will form part of the total assets and liabilities available for distribution.
If your former spouse or de facto partner is selling your house without your consent, you can lodge a caveat over the property. This will prevent him or her from selling the house. The caveat can be lifted once you and your former spouse or de facto partner have reached an agreement or upon Court Order.
When you separate from your former spouse or de facto partner, make sure you keep track of all your assets, debts and superannuation entitlements until an agreement has been reached. You can collect hard copies of any statements, photographs or other records, or you can save them to a folder on your computer.
If you feel that your former spouse or de facto partner may sell a house, you can apply to have a caveat registered on the property title to ensure that it is not sold. A caveat on a property title warns people that you have an interest in the property.
It’s more cost and time-effective if you and your former spouse or de facto partner are able to reach an agreement about dividing your money, property and other assets.
If an agreement has been reached, it is advisable to lodge the agreement with the Court by way of Consent Orders so that the agreement is legally binding.
When making an application for consent orders, one party will need to have received legal advice. This will ensure the Court accepts the agreement to be a just and equitable division of the property and assets of the relationship. If the Court does not accept that the agreement is just and equitable, you’ll need to amend the agreement.
It is commonly believed that property will be divided equally between you and your former spouse or de facto partner. This is not the case.
It is also common for people to believe they will only receive the property that is in their name. However, this is also not the case.
There is no set formula for a Court to decide what percentage you or your former spouse or de facto partner will receive. Each matter is considered based on its own unique facts.
If a same-sex couple married prior to the recognition of same-sex marriages in Australian law and had already entered into a Binding Financial Agreement, the Binding Financial Agreement will continue to be valid. The Court will treat the agreement as made under the provisions of the Family Law Act 1975.
It depends on the matter. If there are available assets and funds to make up the percentage of the net asset pool available for you to retain, then superannuation does not need to be split. However, if funds and assets are not available to reach that percentage a superannuation split will be the only way to move forward. You can also do a partial superannuation splitting payment.
Each party must pay their own legal fees, unless a Court makes an Order for costs under certain circumstances. For further information, please read more about Legal fees paid in property settlement matters.
A prenuptial agreement is a term used in the United States of America. The equivalent term, in Australia, is Financial Agreement.
The Family Law Act 1975 allows financial agreements to be entered into during the following periods:
- before entering a marriage or a de facto relationship
- during a marriage or a de facto relationship
- after a marriage or a de facto relationship has ended
To find out more, visit Financial Agreements.
A family lawyer can assist you with family law advice, negotiations with your former spouse or de facto partner, and commencing family law proceedings on your behalf. Even if you do not engage a family law solicitor, it is extremely important that you seek family law advice prior to signing any agreement.
An affidavit is a written statement that sets out a person’s evidence, or information, that helps to paint a picture of their family law matter.
Family Court affidavits are used to provide evidence to the Court to prove or disprove a fact.
Evidence can only be given to the Court in the form of an affidavit unless otherwise ordered by the Court.
When filing an affidavit in Court, it must follow the rules of the specific Court. Find tips on how to write a family law affidavit here or call our family lawyers at Ivy Law Group on 02 9262 4003.
A lawyer, Justice of the Peace or a Notary Public (or Australian Diplomatic or Consulate Officer if you are located overseas) can witness the signature on your affidavit. You must sign the affidavit in front of the witness. Find tips on how to write an affidavit here or call our family lawyers at Ivy Law Group on 02 9262 4003.
The Applicant is the person who commences proceedings in either the Family Court of Australia or the Federal Circuit Court of Australia.
In a joint application for divorce or an Application for Consent Orders, the person who completes the application is the Applicant and the other party is the Respondent.
It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.
The Respondent is the person who responds to the other party’s Initiating Application or Divorce Application.
It does not matter if you are the Applicant or the Respondent in proceedings, as evidence from both parties is heard and considered by the Court.
Yes, you can issue a subpoena if you have commenced legal proceedings in either the Family Court of Australia or the Federal Circuit Court of Australia.
Subpoenas are issued through the Court and can be issued to any person involved in your family law proceedings, including your former spouse or de facto partner, children of the marriage or de facto relationship, grandparents or any other person who is involved in the matter.
Find out more about how subpoenas work in family law proceedings or contact our family lawyers at Ivy Law Group on 02 9262 4003.
An “addback” in property settlement proceedings means an amount of money spent by one or both parties to the proceedings, after separation, which the other party argues should not have been spent. The argument is that the amount should be “added back” into the net asset pool. Whether the Court will consider adding back such spending as a notional asset remains a complicated area of the law.
For further information, please read Legal fees paid in property settlement matters or contact our family lawyers at Ivy Law Group on 02 9262 4003.
The family law term is property settlement matter or financial settlement matter. Basically, it is ending the financial relationship between you and your former spouse or de facto partner.
Yes, in some circumstances. An Order can be set aside, or Orders varied, under section 79A(1) of the Family Law Act 1975 where:
- there is consent by both parties to the matter
- there has been a miscarriage of justice by reason of fraud, duress, suppression of evidence (including failure to disclose relevant information), the giving of false evidence or any other circumstance
- the order is impracticable because of circumstances that have arisen since it was made
- a person has defaulted in carrying out an obligation under the Order and due to circumstances that have arisen as a result, it is just and equitable to vary the Order
- other exceptional circumstances have arisen since the making of the order meaning that the Applicant will suffer hardship if the court does not vary or set aside the order
- a proceeds of crime order against property of the parties or against one of the parties.
Read more about ‘Consent Orders’.
Contributions are the things, in percentage terms, that you and former spouse or de facto partner have put into the net asset pool of the relationship.
Contributions can be made before or during a marriage or de facto relationship or at the date of separation, and include:
- homemaker and parenting contributions
- direct or indirect financial contributions, including wages, gifts and inheritances
- other non-financial contributions, including improving a property.
The Court will determine what contribution, in percentage terms, each of the parties has made to the asset pool.
The Family Law Act 1975 enables the Court to take into account any other factor that it regards as relevant to the division of property (or the settlement of property matters). This includes “waste” in relation to assets and “negative contributions” in relation to serious family violence.
For further information, read Can there be negative contributions?.
If you want to run a waste or negative contributions argument either in Court or during negotiations, we highly recommend you obtain legal advice as it is a complex area of family law.
For family law advice tailored to your circumstances, contact the family lawyers at Ivy Law Group on 02 9262 4003.
At the Family Court registry in your local area or city. Visit the Family Court website to find your local registry.
If there are property Orders made by either the Court or by consent about the transfer of real property, you will need to follow the terms of the Orders to transfer the title.
The term used in Family Law is Binding Financial Agreement. This is an agreement voluntarily entered into by both parties when an agreement about property settlement matters has been made.
