Do I have to be divorced to split the property?
Property and financial matters can be settled as soon as you separate so if you are married you do not have to wait to divorce to finalise property and financial matters. In fact it is often preferable to settle Property matters sooner rather than later after separation.
Do we have to go to Court?
At our first consultation we will discuss with you the best course of action in your particular case. The majority of matters can be settled out of Court either through personal negotiations between you and your former partner, mediation or a Round Table Conference.
If you can agree on a settlement terms then it is important that you legally finalise all property and financial matters between you to negate the possibility that your former partner will reopen the settlement later on, sometimes years down the track.
If the separation is amicable you and your partner may be able to come to an agreement that can then be referred to us so tat we can initiate the legal processes to finalise your matter.
Alternatively you can attend mediation with a mediator experienced in family law to try and come to an agreement. The mediator will be a neutral third party whose role is to facilitate you reaching an agreement on terms acceptable to both of you. We work closely with a number of mediators and can usually arrange for mediation within 2 weeks of your first consultation with us.
Another option is to try and reach agreement via a Round Table Conference which would involve attendance by both of you and your legal representatives to try and reach an agreement between you.
Any settlement agreements reached t you and your partner privately, at mediation or a a round table conference can then be referred to us and we can get the undertake the legal processes to finalise your property matter and split assets between you.
What if we can’t agree?
If you and your former partner are unable to reach agreement then it may become necessary to issue proceedings in the Family Court or the Federal Circuit Court of Australia. This application must be made within 12 months of your divorce becoming final.
We as your lawyers, will prepare documents to file with the Court including an Initiating Application, usually an Affidavit setting out the evidence in support of your claim and a Financial Statement in which you must make full and frank disclosure of your financial circumstances.
The documents are filed in Court and a hearing is set by the Court. The type of hearing will depend on the Court in which your Application is filed. We will brief a barrister to represent you on the day who will in most circumstances have been involved in your matter from the outset. It is important that a barrister be involved as early as possible as it is the barrister that will negotiate a settlement with the other party at Court and make submission to the Judge.
Each Court event will present an opportunity for you and your former partner to agree on settlement terms and the initial Court process will always include an opportunity for you attend at dispute resolution either at a court based Conciliation Conference or a private mediation.
If you cannot settle the matter at the resolution phase of the Court process your matter will be listed for a final hearing where the Judge will hear the evidence and make a final decision in your matter.
How does a Court decide?
Firstly the court will calculate the total assets owned by both parties, including property, shares, cars, jewellery, savings, furniture etc. This includes things you brought into the relationship, those acquired during the relationship and also those purchased after separation.
Next the court will weigh up the contributions from both parties, including financial, non-financial, inheritances and assets brought into the relationship.
Then the court will look at the future needs of both parties, including factors such as your capacity to earn money and your parental responsibilities.
Lastly the court will make a decision based on what is just and equitable to both parties.
We can help
Dealing with the complexities of property settlement is stressful but the consequences of not doing it properly can impact on the rest of your life. We are experienced negotiators, and will make sure that you get the best possible outcome.
What happens at the first meeting with CCS Lawyers
At the first personal attendance we will ask you a number of questions about your and your former partner’s financial circumstances at the beginning and during the relationship and also since separation. We will need a history of the relationship including details regarding the commencement of the relationship, marriage, birth of children and separation.
We will also need to ask you about your asset holdings and liabilities, including:
- Assets held solely in your name or jointly with someone else;
- Superannuation holdings for both you and your former partner;
- Any business holdings or trust or company structures in which you or your former partner hold any interests;
- Details of bank accounts held by you solely or jointly with another person; and
- Details of mortgages, loans and credit cards held by you solely or jointly with another person.
- The more information we gather the better we will be able to advise you of the possible range of outcomes in your situation.