Separation can be tough. There’s lots to consider and it’s important to know where you stand. We’ve come up with a list of the basic things you need to know to help you ensure you get your fair share.
- We have separated and I want to come to an agreement with my former partner regarding our joint property. Where do I start?
The starting point is to make a list of all current assets, liabilities and superannuation interests of the parties to the separation. This allows for the “net property pool” to be identified. The next step is to determine the value of the net property pool. In undertaking this exercise it may be necessary, for reason of complexity or dispute, to appoint an independent valuer/valuers to determine the value of certain items in the property pool. This will often be the case when dealing with assets such as real property and interests in a business/company.
- What can I do if my partner looked after all the finances and I can’t be sure that I have knowledge of all assets and liabilities of the relationship?
It is the obligation of each party to a property settlement matter to provide to the other full and frank financial disclosure. This obligation subsists from the commencement of negotiations through to finalisation of property settlement matters, either by way of agreement being reached or Orders being made by the Court.
In most cases, parties are agreeable to making voluntary disclosure as to their current financial circumstances. In the minority of cases where a party is obstructive to the disclosure process, Court proceedings can be commenced and a subpoena issued seeking production of documents from a third party to ascertain financial information. These third parties are commonly banks, accountants, etc.
- Is Superannuation included in the property pool?
Yes. Superannuation is treated as property for the purposes of calculation of the net property pool and during the course of property settlement negotiation. The Family Law Act 1975 (Cth) (the ‘’Act”) provides for the “splitting” of Superannuation interests as between separated parties, while the Family Law (Superannuation) Regulations 2001 provide the methods by which superannuation interests are valued and superannuation splitting orders effected.
- Is there a presumption that property is divided 50/50 between separated parties?
No. There is no general rule or presumption that property is, or should be, divided equally when a relationship ends. In some cases an equal division will arguably be fair, just and equitable. In other cases property adjustment other than 50/50 is required to effect a just and equitable outcome.
- If we can’t reach agreement, what next?
If early property settlement negotiations become difficult or are unsuccessful, it may be appropriate to consider Mediation. Mediation can assist separated couples to reach agreement with the assistance of an independent and neutral party, being the Mediator.
Mediation is certainly a worthwhile process and can be particularly effective in cases where the property pool is relatively small and/or the parties to the separation have been negotiating and are not “too far apart” in those negotiations and/or the communication as between the parties is not good or has broken down during the course of the early negotiations.
- How will my property matter be determined if we have to go to Court?
Courts have a wide discretion to weigh up the different contributions of parties to a marriage or de-facto relationship.
Firstly the Court must determine whether it is just and equitable for there to be orders made adjusting the property interests of the parties. If so, Section 79(4) of the Act gives the Court power to make orders in property settlement proceedings having regard to various categories of contribution including direct and indirect financial contributions, direct and indirect non-financial contributions and contributions to the welfare of the family and/or children. Each of the categories of contribution is weighed and assessed by, and at the discretion of, the Court on the facts of each case.
Following an assessment of the categories of contribution the Court will consider the future needs of the parties taking account of such factors as disparity in income earning capacity, general capacity to engage in meaningful employment, health difficulties, parenting arrangements, etc. The final step is for the Court to make an overall assessment that in all the circumstances of a particular case it is just and equitable to make the proposed property settlement orders.
How can Marino Law help?
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