How to Achieve a Fair Family Law Property Settlement?
06 January 2014
Achieving a fair Family Law Property Settlement is the aim of most people who end up separating, but what is fair? It is very difficult for a person to work out what is fair when going through the emotional turmoil of a separation. An experienced Family Lawyer can help you. Whilst well-meaning friends who have been through it themselves may well be able to provide some emotional support, don’t rely on their “advice” as every case is different and will require an objective expert assessment. An experienced Family Lawyer will ask you questions about your personal and financial situation so that we can apply the factors detailed in the Family Law Act to make a proper assessment as to what is fair in your particular circumstances. We will not give you an “absolute” answer (no-one will be able to do that as Family Law is a discretionary jurisdiction) but we will give you the range of possible answers and discuss with you the practical options available.
Once you have comprehensive legal advice as to where you stand, then you need to consider the process whereby a settlement can be achieved. Some clients, despite having separated, still have a communicative working relationship with their spouse or partner and may be able to have direct discussions in order to achieve an agreed settlement within the fair range. However, such discussions can often be difficult and emotionally charged and it may be a good idea to adopt an alternative approach.
Sometimes, in straightforward cases, it may be possible to quickly settle your case if both parties (and their lawyers) adopt a reasonable and cooperative approach. A series of frank phone calls (or an informal meeting) between experienced lawyers can sometimes result in a very cost-effective settlement being achieved promptly.
In more complex cases, mediation (prior to any court proceedings) can be utilised once all of the relevant facts are on the table. Mediation is a form of dispute resolution where the parties to a dispute agree to discuss the disputed issues with a view to exploring the settlement options to achieve a settlement with the assistance of an independent mediator. A mediator will keep the discussion on track and ensure that discussions are respectful and focus on the real issues. A mediator will not provide legal advice to you as you will have your own lawyer fulfilling that role. In many instances, a client will want to have his/her lawyer also participate in the mediation process and speak on behalf of the client or assist the client in negotiations, as an experienced Family Lawyer has successfully taken clients through the mediation process on many previous occasions. Mediation can also used to settle disputes during court proceedings in order to save the time, and expense, of waiting many months for a case to be listed for a Final Hearing for determination by a Judge.
Unfortunately, it is not always possible to settle a case in a cost-effective manner using one of the above settlement processes. So, you may end up in Court. The main reason why some clients find it impossible to settle without court proceedings is that one of the parties has unrealistic expectations as to the outcome which can be achieved. This is why it is very important for both parties involved in a property settlement dispute to ensure that they are getting the best legal advice available from a reputable, honest Family Law Specialist Law Firm rather than from a lawyer who just gives a client the “legal advice” they want to hear-which only serves to prolong the legal proceedings and escalate legal costs for both parties.
Can we agree on a Family Law settlement without going to Court?
25 October 2018 -
Can we agree on a Family Law settlement without going to Court? This is a question asked by many clients at Melbourne Family Lawyers. The answer is both yes and no.
Should I Separate Before my Rich Parent Dies to Preserve my Inheritance?
12 April 2018 -
If your marriage or relationship is on the rocks and you are agonising as to whether to separate from your spouse or partner, then here is some advice which may spur you on to make a decision one way or the other.
When Can I make a Claim for Property Settlement as a De Facto Partner?
18 July 2017 -
In Australia, the Family Law relating to De Facto partners is substantially the same as the law relating to people who are legally married. The Family Law Act covers married people and de facto couples, including those in homosexual relationships.
When should I apply for a Family Law Property Settlement?
18 August 2016 -
The only legal rules about when you should apply for a Family Law property settlement are concerning how late you can apply. People in a De Facto relationship have up to two years after separation. Married people have up to one year following the Divorce. Contrary to a popular belief, you do not have to wait until you are divorced to have a property settlement.
When is Spousal Maintenance Payable?
31 August 2015 -
Spousal Maintenance (also called alimony in some countries) may be payable in Australia by one spouse (or de-facto partner) to the other under some circumstances pursuant to the provisions of the Family Law Act.
The Best Family Law Advice from Melbourne Family Lawyers
20 July 2015 -
At Melbourne Family Lawyers, we don’t offer a “free” first consultation and use it to market our services to you. The first meeting with one of our lawyers is scheduled for one hour because we know it will take a bit of time to listen to your story so that we can understand your situation and what is important to you and what you would like to achieve.
Is my Spouse entitled to a share of my Superannuation if I separate?
20 January 2015 -
In a Family Law Property Settlement, Superannuation is always taken into account when considering a division of property between spouses (including de facto or same-sex partners). These days, most people have Superannuation entitlements. Whilst those Superannuation entitlements may not be readily accessible now if you are below retirement age, they will make a difference to your financial situation when you do retire.
If I win Tatts Lotto, do I have to share the winnings with my ex spouse?
10 December 2014 -
This question sometimes arises in family law property settlement cases- and the answer will depend on the exact circumstances. As is usual in family law cases, there are many possible scenarios and many different possible results. Let’s consider a few examples.
Beware of Family Lawyers offering Free Initial Consultations
26 November 2014 -
Have you come across the recent advertising from Family Lawyers offering “free initial consultations”? Have you stopped to think why those lawyers are doing that?
Do I get to keep my inheritance in a Family Law Property Settlement?
30 October 2014 -
It is important to remember that every Family Law Property Settlement case is different and will be decided in accordance with the guiding principles in the Family Law Act and the case law arising from past decisions of the Family Law Courts. This article summarises some of those guiding principles.
Achieving a Family Law Property Settlement with a “Bully” Spouse
27 February 2014 -
Bullying is characterized by an individual behaving in a certain way to gain power over another person- and this is often a problem in marriage or relationship breakdown situations.
What to Expect from a Family Lawyer
8 November 2013 -
A Family Lawyer will advise you as to his or her opinion as to where you stand when applying the applicable Family Law to your particular situation. However, a Family Lawyer will never be able to provide you with a definitive outcome in your case as the outcome of your case will depend on the following.
Which Family Law Court in Melbourne?
8 April 2013 -
Clients are sometimes confused about which Family Law Court is appropriate to hear their case in Melbourne. This is understandable as there are three separate courts on the same street in Melbourne which have jurisdiction on Family Law related issues.
Achieving a Fair Family Law Settlement for De Facto and Same Sex Couples in Victoria
15 March 2013 -
The Family Law in Victoria is now almost exclusively governed by the Family Law Act (Commonwealth) whether you are married, or in a de facto or same sex relationship. The State of Victoria previously had the power to make laws concerning couples who were not married, but referred those powers to the Commonwealth Government in 2009.
Finding the Best Family Law Firm in Melbourne
15 January 2013 -
So your spouse has just announced, "It's over!" and you need to find a law firm to help guide you through one of the most stressful situations you are going to face. Where do you start? Do you go back to your local conveyancing law firm who looked after the purchase of your home?
Social Networks - a Divorce Lawyer’s Nightmare or Dream- depending whose side you are on!
11 April 2012 -
Watch Out- Social Networks- A Divorce Lawyers Nightmare (or Dream) What you say on FaceBook or Twitter may well end up as evidence in the Family Law Courts!
Collaborative Family Lawyers - What Women (and Men) Want!
10 August 2011 -
Marriage is a strange phenomenon that happens to human beings. And the best part is, both the unmarried and the married are unhappy, though for radically opposite reasons, one for not being married, and the other for being married.
It's Not Just a "New Mistress Law": Family Law Act Now Applies to De Facto Marriage and Same-Sex Relationships
15 April 2009 -
On 1 March 2009, new Commonwealth laws for spousal maintenance and the division of property for people in de facto relationships came into force. The Commonwealth Family Law Act 1975 now applies to both married and de facto couples as well as same-sex couples. Previously, de-facto relationships were covered by State Laws and disputes between de-facto couples were determined by State Courts such as the Supreme Court and County Court- Such disputes are now within the jurisdiction of the Family Court of Australia and the Federal Magistrates Court, as are disputes concerning children of all relationships.
Family Court Pre Action Procedures
9 March 2009 -
Family Law Disclosure Rules
22 January 2009 -
A direct extract from Family Law Rules- Parts 13.1 and 13.2
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