The division of the matrimonial asset pool after separation is referred to as a “property settlement”. If you have separated, or are considering separation, and are concerned about how your asset pool could be divided upon separation, we suggest the following steps:
Tip 1: Put your mind to the assets, superannuation, liabilities and financial resources held by you and your partner, that are held in your respective and joint names now and at the time of you commencing to live together.
A common belief is that if an asset or liability is in one party’s name that the other party has no claim to that asset. Irrespective of who holds the asset in their name, all assets, liabilities, superannuation and financial resources must be disclosed and will be included in the pool for division. Assets, liabilities and financial resources held by parties are:
- Residential properties;
- Commercial properties;
- Bank accounts;
- Share portfolios;
- Jewellery such as engagement rings, weddings rings, heirloom jewellery;
- Superannuation interests including self- managed super funds;
- Life insurance policies;
- Trust structures including family trusts;
- Lines of credit;
- Personal loans;
- Motor vehicle loans;
- Business debts; and
- Taxation debts.
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Tip 2: Book an appointment with a solicitor experienced in family law.
Forge Legal offer a one hour strategy sessions during which, your Forge Legal solicitor will discuss with you and apply the relevant considerations of a Court when determining a property settlement. A common mis-belief that if you are married, that your asset pool will be divided 50/50 upon separation. This is not true. The Family Law Act provides a 4 step process be applied when assessing how the asset pool should be divided, these steps being:
- The asset pool that you and your partner currently have to divide, having regard to the abovementioned common assets, liabilities, superannuation and financial resources. If an asset or liability is in a party’s sole name it does not result in it being excluded from the asset pool for division.
Remember the more precise you are with respect to the values and composition of the matrimonial pool, the more detailed our solicitors can be with their preliminary advices to you.
It is not uncommon for one party to manage the household finances in a relationship and the other spouse to have very limited understanding of the matrimonial asset pool and financial position. If you are unable to provide values, our solicitors can discuss with you avenues to obtaining the information.
- How you and your partner acquired your asset pool having regard to:
- what each of you owned at the time of you commencing to live together;
- the financial contributions made by each party during the relationship through:
- inheritances; and
- significant gifts from third parties;
- the non- financial contributions made by each party during the relationship such as:
- care responsibilities for children;
- completion of chores and housework;
- renovations; and
- management of household accounts.
- The future needs of the parties, being any matters that would impact upon a party’s ability to maintain themselves in the foreseeable future having regard to:
- the care responsibilities for any children;
- the earning capacities of each of you and whether there is any disparity in your respective earnings; and
- any health issues experienced by either party.
- A preliminary view as to what is likely to be considered “just and equitable” by the Court with respect to the distribution of the asset pool having regard to the circumstances of your matter.
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Important time limitations
There is no timeframe in which you must wait to pursue a property settlement from your partner once you have separated. This may begin immediately. However, there are time limitations in which you must seek a property settlement. They are:
If you were married – you have 1 year from the date of your divorce being granted to have either:
- negotiated and formalised a property settlement in a legally binding manner such as an order or a Binding Financial Agreement; or
- commence proceedings in the Family Courts seeking a property settlement.
If you were in a de-facto relationship – you have 2 years from the date of your separation to formalise your property settlement or have commenced proceedings.
This day and age, our lives and finances can be equally complicated. Forge Legal utilises our diverse and highly skilled team to overcome the most complex Family Law matters, including matters in relation to:
- Consent Orders;
- Severing Joint Tenancy;
- Binding Financial Agreements;
- Prenuptial Agreements;
- Complex Property Matters;
- Self-Managed Superannuation Funds;
- Family Trusts;
- Property Pools including Companies, Trusts, Self-Managed;
- Enforcement Proceedings;
- Spousal Maintenance.