Property Settlement & Financial Agreement Lawyers

It is essential to get legal advice from an experienced Family Lawyer before you discuss financial issues arising out of a separation with your spouse or partner.  Family Law can be complex and every case is different. We can guide you and suggest possible solutions for your situation.  Some separating couples can find it very stressful to talk to each other about financial issues- for those people, we can conduct the negotiations on your behalf and achieve a fair property settlement without you needing to confront your spouse or partner directly.

Property Settlement

We handle all aspects of problems related to Family Law Property Settlement in a holistic way. We have the knowledge of how to resolve your Family Law problem in the context of your entire circumstances paying particular attention to relationships, finances and taxation.

At the end of a relationship, it is necessary to determine how to divide up your assets and financial resources. A property settlement is the term used to describe who gets what after the end of a marriage. The Family Law Act 1975 covers matters relating to property settlements for married couples and de-facto couples (including same-sex relationships).  A financial case can cover such things as property settlement, maintenance, child support or financial enforcement. "Property" covers such things as your home, other real estate, money in the bank or other financial institution, cars, boats, investments, business interests, household contents, and Superannuation.  

How do you determine what the Property Settlement should be?   

Contrary to urban myths, there is no presumption that the property should be divided 50/50, 60/40 or in any other arbitrary proportion. The Family Law Act sets out the factors which must be taken into account when a Judge has to consider how property is to be divided.

The Family Law Act 1975 sets out the general principles the court considers when deciding financial disputes after the breakdown of a marriage or a de facto relationship.  There is no universal formula to apply as a property settlement is based on discretionary criteria.  Beware of "advice" received from well-meaning friends or family as a result of their own experiences.  Each person's situation is different and should be carefully assessed by a family lawyer qualified to give the right advice.

When hearing a case about property settlement, the Family Law Court is firstly required to identify the existing legal and equitable interests of the parties in the property that is available for distribution between them.  The Court must then determine whether it is just and equitable to make an order altering the parties’ interests in the property.  If so satisfied, the court must then consider the contributions made by each party before looking at their future needs as referred to in section 75(2) of the Family Law Act.

The factors which the Family Law Act specifies must be taken into account are as follows:

  • Assessing the current value of the property concerned and the extent of any liabilities
  • Assessing the direct financial contributions by each party, for example, assets and savings owned at the commencement of the relationship.
  • Considering the indirect financial contributions by each party, for example, gifts and inheritances from families.
  • Considering the non-financial contributions to the marriage or de facto relationship, for example, caring for children, being the homemaker and maintaining or improving the property.
  • Taking into account future needs, for example age, health, financial resources, care of children and income earning capacity.
  • Finally, after considering all of the above, the final consideration is to apply the test of whether any proposed property settlement is fair and equitable in the circumstances.  

It is important to realise that the way your assets and debts will be shared between you will depend on the individual circumstances of your family. Your settlement will probably be different from others you may have heard about.

Can you have an informal property settlement?  

Whilst there is no law against making your own informal property settlement without lawyers and outside the scope of the Family Law Act, it is not a wise move. Unless a settlement is approved by a Court, or a formal binding  Financial Agreement  is made pursuant to the Family Law Act, an informal property settlement is not regarded as binding. This means that one of the parties could renege on it and be entitled to apply to the Family Court for a greater share of the property in the future. However, it is not necessary for you to appear in court in order to have a binding settlement. If terms of settlement are reached, a family lawyer can prepare an Application for Consent Orders which may be lodged at the Family Court without the need for anyone to actually appear in Court. Consent orders have the same legal force as a decision made by a Judge in a Courtroom. Before making the consent orders the Court will need to be satisfied that the orders are properly drafted and that the terms are just and equitable. The benefit of having orders made by consent is that you know exactly what the settlement will be as opposed to the uncertainty of having a judge to decide the matter for you. The long delays experienced in court proceedings coupled with the expense of court proceedings certainly make going to court the less preferred option. 

Full and Frank Disclosure

If you are involved in a case about property you are required to make a "full and frank disclosure" to the other party about all of your property, superannuation, financial resources. For detailed information about this, refer to the page Disclosure under Family Law Rules under our Articles & Cases section. 

Mediation and Negotiation

The Family Law Rules require you to take certain steps before you commence legal proceedings in the Family Court (These steps are called Pre Action Procedures). The Pre Action Procedures are intended to encourage parties to resolve matters through negotiation rather than having a Judge make a decision in Court. Unless your case is urgent, or involves some exceptional factor, such as allegations of abuse or fraud, you must: 

  • Make a genuine effort to resolve the dispute through counselling or mediation; 
  • Providing the other party with copies of relevant documents;  
  • Make a settlement offer; 
  • advise the other party of the orders you will seek from the Court. 

Complete details of what is required to comply with Pre Action Procedures can be found at the page-Pre Action Procedures under our Articles & Cases section.   

Our Expertise

We have extensive experience in the following:

  • Negotiations and Out of Court Property Settlements
  • Contested Family Court Litigation
  • Review of complex financial structures and assessing pool of assets
  • Valuation of businesses and companies
  • Identification of Capital Gains Tax Issues
  • Complex Property Settlements involving Businesses and Family Trusts
  • Property Settlements relating to Doctors and Dentists 
  • Tax effective settlements
  • Finding "hidden" assets
  • Protection of assets
  • Superannuation splitting
  • Binding Financial Agreements
  • Pre Nuptial Agreements
  • Cohabitation/Financial Agreements for unmarried partners
  • Financial Agreements for separated partners
  • De Facto Marriage problems 
  • Same-Sex Marriages and Relationships
  • Lump Sum and periodic Maintenance disputes
  • Child Support Disputes
  • Mediation
  • Injunctions and Personal Protection Orders
  • Injunctions to protect persons and/or property 
  • Applications for Sole Use and Occupation of Family Home
  • Restraining Orders 
  • Intervention Orders in Domestic Violence cases 
  • Advice on Child Support issues 
  • Child Support Agreements 
  • Child Support Applications 
  • Child Support Departure Orders 
  • Child Support Trusts 
  • Resolving Disputes about Children and Parenting
  • Divorce
  • International Family Law cases
  • Certification of New Zealand Relationship Property Agreements

All of our lawyers are admitted to practice as Barristers and Solicitors.  We also regularly brief Queen's Counsel and Senior Counsel at the Bar

For further Specialist advice, call Melbourne Family Lawyers today for an appointment on +613 9670 9677.

Established in Melbourne since 1985.

Maintenance  

Maintenance (also called "alimony" in some countries) is payable after separation if your ex-partner does not have the capacity to support himself or herself and you can afford to pay money in support. Maintenance may be paid periodically (e.g. monthly) or it may be capitalised as a lump sum. It is different to child support which is payable solely for the maintenance of children. 

Maintenance may be payable if you are:  

  • separated or divorced from a legal spouse 
  • separated from a de facto partner after 1 March 2009

You can apply for maintenance after you separate but the time limits should be noted.  You must apply for a court order for maintenance and/or property settlement:

  • within one year from the date your divorce was finalised 
  • within two years from the date your de facto relationship ended

In special circumstances, it may be possible to get around these time limits.  

What is a Financial Agreement?

Married or de facto couples (including same-sex couples) have a right to make Financial Agreements about financial matters that are legally binding. Such an agreement (sometimes referred to as a Binding Financial Agreement, a BFA, a Pre Nuptial Agreement, a Pre Nup or a Cohabitation Agreement) can be made before, during or at the end of a relationship.

A Financial Agreement is a written document which sets out what you and your partner have agreed to do with respect to financial matters (including property settlement, maintenance and Superannuation splitting) in the event of a breakdown of the relationship. A Financial Agreement does not have to be approved by a court- in fact, it is used in order to ensure that a Court cannot interfere with private arrangements made between two consenting individuals.  

The Family Law Act states that a Financial Agreement is binding on the parties to the agreement:

if, and only if: 

(a)  the agreement is signed by all parties; and 

(b)  before signing the agreement, each party was provided with independent legal advice from a legal practitioner about the effect of the agreement on the rights of that party and about the advantages and disadvantages, at the time that the advice was provided, to that party of making the agreement 

(c)  either before or after signing the agreement, each party was provided with a signed statement by the legal practitioner stating that the advice referred to in paragraph (b) was provided to that party (whether or not the statement is annexed to the agreement); and 

(ca)  a copy of the statement referred to in paragraph (c) that was provided to a party is given to the other party or to a legal practitioner for the other party; and 

(d)  the agreement has not been terminated and has not been set aside by a court. 

The Court can declare a Financial Agreement invalid if these conditions are not met, or if fraud or non-disclosure is involved. It is essential that you have an expert family lawyer advising you on Financial Agreements.  The cost involved is insignificant compared to the future cost and stress of potential Court Litigation.

Pre Nuptial Financial Agreements

Some people would like to protect what they already have at the time of commencing a new relationship. Such protection can be achieved by entering into a Financial Agreement.  You need to have a frank discussion with your intended spouse or partner about what should be included in the Financial Agreement, and both parties must be willing participants as you cannot force the other person to sign a Financial Agreement.  Also, each party to the Financial Agreement must be independently represented by a separate lawyer.

As these Financial Agreements have stringent legal requirements to be fulfilled to ensure that they are legally binding, they are not cheap.  However, in the context of potentially avoiding the stress and financial devastation which could be caused by future bitter court litigation, the initial expense is definitely worth it for the future peace of mind.

All of our lawyers are admitted to practice as Barristers and Solicitors.  We also regularly brief Queen's Counsel and Senior Counsel at the Bar

For further Specialist advice, call Melbourne Family Lawyers today for an appointment on +613 9670 9677.

Established in Melbourne since 1985.

Contact us now. We’ll know what to do… Phone +613 9670 9677, make an enquiry or book an appointment.