Property and Financial
BDN will guide you through this process in the calmest possible way. Whether this be by negotiation, mediation, collaboration or litigation.
There are many things to consider in a financial settlement such as division of the matrimonial home, vehicles, other property, shares, superannuation, whether inheritance in relevant, child support and spousal maintenance.
A financial settlement can come in many forms whether it be a Court ordered settlement, agreed Consent Orders or a Binding Financial Agreement.
The path to coming to a financial settlement can be by way of negotiation, mediation, collaboration, litigation and sometimes a combination of more than one method.
Often it is important to involve other professionals such as accountants, financial advisors, valuers and barristers to provide tax and other expert advice.
A property settlement is a family law Order or Agreement which divides matrimonial property.
If you wish to commence proceedings in relation to property and spousal maintenance you must do so within 12 months from the date of divorce. After this time you need to seek the leave of the Court which can be difficult to obtain.
Defacto couples have two years from the date of separation in which to commence proceedings for property and spousal maintenance.
You can file Consent Orders with the Court or you can sign a Binding Financial Agreement. Both are recognised under the Family Law Act 1975. However, there may be reasons for choosing one method over the other.
A properly drafted Binding Financial Agreement will cost you more than an Application for Consent Orders. A Binding Financial Agreement requires both parties to have comprehensive independent legal advice. Each party must have a lawyer which in turn equates to more costs. In contrast, when you file an Application for Consent Orders you can choose whether or not you wish to use lawyer.
When considering an Application for Consent Orders the Registrar of the Court is required to ensure that the Orders are “just and equitable” pursuant to the Family Law Act 1975. On occasion we will have clients who strike a deal that they are happy with and that works for them however the Court may not regard it as “just and equitable”.
Another reason you may choose a Binding Financial Agreement is where you want to make provision for spousal maintenance, or make sure no-one can make a claim. An order for spousal maintenance in a Family Court Order can be varied by the Court down the track. A Binding Financial Agreement can ensure this does not happen.
If you have reached agreement please contact us so that we can advise you of the best option for you.
No. There are a number of factors which need to be considered when negotiating a financial settlement after divorce or separation. Some examples of relevant factors are age, health, financial contributions, whether there are children, length of the relationship etc.
The Family Court and the Federal Circuit Court both apply a process which is set out under the Family Law Act 1975.
- Step one: Identify and value the property, liabilities and other financial resources of the parties as at the date of the hearing
- Step two: Assess their financial, non-financial and welfare contributions
- Step Three: Assess any relevant section 75(2) (or section 90 SF(3)) factors such as disparity of income and earning capacity and having the care of the children, as an adjustment of contribution based assessment
- Step four: Consider the effect of the Orders and whether they are “just & equitable”
It is important to remember that there is no certainty as to outcome in a Court. No matter how experienced your lawyer is they will not be able to guarantee you a certain outcome. Different Judges have different views and can also change their views depending on the evidence before them. It is for this reason that very few matters proceed to final trial and if they do it is very common for them to be resolved on the doorstep of the Court.
Mediation is an effective way to negotiate both financial settlements and children’s matters. Do you do need to be legally represented to attend a mediation. However, it is common for each party to be legally represented and the lawyers work with the mediator to reach a resolution. Mediators can come from various backgrounds but are often lawyers, retired judges, barristers or psychologists.
Collaborative law is a process whereby the parties agree to work together to find a solution without going to Court. Collaborative practice enables parties to draw on the expertise of accountants, financial advisors, valuers, psychologists and other professionals to assist them come to a resolution that works for everyone and that they can live with.