Haven Legal Co. have experienced lawyers who provide a range of services across Family Law.
We can assist you with the following matters:
Divorce / Separation
Children’s issues including child support
Binding Financial Agreements (pre-nuptial agreement)
What is a property settlement?
A property settlement is the division of assets between parties to a relationship.
The Family Court and the Federal Circuit Court of Australia have the power to determine a property settlement between both married and de facto couples. The principles for de facto relationships are largely similar to those for married couples. Please note this information provided here is general information only and you should seek legal advice that is specific to your circumstances.
The 5-step approach
To determine a property settlement the court takes a 5-step approach. This does not mean all family law matters end up ‘fighting it out’ in front of a judge. In fact, we will encourage you to seek resolution out of Court. It keeps the power in the parties hands and gives you more control over the outcome.
What you have to do in order to come to a decision is apply the 5-step approach so that once we place the agreement before the Court to give it the seal of approval, they can reach the same conclusion.
What do you have?
Is it ‘just and equitable’ to make an adjustment?
How did you get it?
Other factors to consider
Is the overall division appropriate?
The first step is to identify the net asset pool of the relationship. This will involve identifying whether the current assets and liabilities of each party are held jointly with the former partner or separately.
Parties need to provide full and frank disclosure of their personal ‘property’. ‘Property’ generally refers to, but is not limited to:
- Real Estate
- Bank Accounts
- Household chattels
Joint liabilities must also be taken into account
We also consider whether assets held by any companies and/or trust are part of the ‘property pool’. To determine this, consideration must be given to the degree of control and interest exercised by each party with respect to the company and/or trust.
We must consider whether it is ‘just and equitable’ to intervene and make any adjustment to the property division before assessing individual contributions by the parties.
We then need to look at how you attained the assets. This is referred to as looking at the different ‘contributions’ you each made during your relationship.
There are many types of contributions such as-
- Financial contributions – This includes income and wages, property acquired during the relationship, assets that you or your partner brought into the relationship, gifts and prize winnings and inheritances.
- Non-financial contributions – such as unpaid work in a family business or an owner builder undertaking renovations to real estate.
- Parent/Carer and Homemaker – Contributions to the welfare of the family are significant, such as the day to day running of the household and care of children.
After assessing the contributions, regard needs to be had for the current and future needs of each party.
Factors to be considered include:
- Your age and state of health
- Your children, their ages, needs and who will be caring for them
- income and future earning capacity
- Duration of the relationship
Finally, we will consider whether the proposed split (which is usually in percentages) and the allocation of assets and liabilities is fair.
There is no precise science to this process and every relationship and result will ultimately be very different to the next.
Whatever the outcome, the Court must be satisfied that the division is ‘just and equitable’.
It is important that you engage a Solicitor that you feel is understanding of your situation. Begin your Initial Family Law Conference.
Children and Parenting Disputes
Many relationship breakdowns involve children – which leaves the question. “How will the children spend time with each of the parent’s post-separation?”. The paramount consideration in all disputes involving children is the concept of the “child’s best interests”.
Joint parental responsibility
The Family Law Act 1975 (“the Act”) provides for the presumption for joint parental responsibility. This means that both parents have equal responsibility for making decisions about major long term issues in their children’s lives, such as decision about their child’s education, health, religion, name etc. The presumption of joint parental responsibility must be applied unless it is not in the child’s best interest or these are reasonable grounds to believe that a parent or person who lives with a parent has engaged in abuse of the children or family violence.
Equal responsibility for decision making does not mean equal time. Where is it not in the best interest of the child or not practical to spend equal time with each parent, then the court will order the child live with one parent and must consider making an order for the child to spend substantial and significant time with the other parent. This might mean weekends and holidays and can also include special occasions such birthdays. Parents need to consider an arrangement that is not only best for their children but is reasonably practicable given the day to day life of the family, work commitments and the like.
Disputes about children
Disputes about children can be resolved by agreement between the parents and formalised by filing documents with the Court (consent orders), as a consequence of mediation or by court after after a trial.
For more information about children and parenting disputes contact us or click here for initial consultation details.
Getting divorced can be very confronting. The finality of ending your relationship with your spouse in many cases can be upsetting and difficult for both parties. But you don’t have to do it alone.
Our lawyers will support you throughout the divorce process.
$880 – joint application (both you and your partner agree to sign the application). Court attendance is not required if you file a joint application.
$1,100 – single party application – no children or children over 18 (you will need to have the application served on your ex-spouse). Court attendance will not be required if there are no children of the marriage or children are over the age of 18.
$1,980 – single party application – with children under 18 (you will need to have the application served on your ex-spouse). Court attendance is required if there are children under the age of 18 years. This includes Court attendance by one of our lawyers