Division of property
When you separate from your spouse, it is usually necessary to divide up the assets of the relationship.
A property settlement, through either court orders or binding financial agreement, outlines precisely how you and your ex-spouse divide up your property. Where there is agreement between the parties, the terms of the agreement can be formalised through consent orders filed at the Family Court of Australia or by a Binding Financial Agreement. At Bainbridge Legal we can assist you with the preparation of these documents to ensure that your interests are protected. If agreement cannot be reached, we can file an application at the Federal Circuit Court of Australia or Family Court of Australia for court orders to resolve property matters.
THE 4 STEP PROCESS
The Family Law Act provides for a 4 step process to be considered in determining property settlement:
1. What are the assets, liabilities and financial resources of the relationship and what are they worth?
2. What are the parties respective contributions to the relationship (financial, non-financial, parenting and homemaker contributions). The Court will also consider whether the parties were in receipt of inheritances and/or gifts.
3. What are the future needs of the parties? This will have regard to parties’ parenting obligations, earning capacity, health amongst other considerations.
4. Finally, the Court will assess what is a just and equitable outcome in the circumstances.
With something so important, trust Bainbridge Legal with your family law matter.
Settling your property division can be achieved simultaneously with the resolution of child custody issues. The Court can also make orders regarding the care, welfare and development of a child including orders relating to parental responsibility, where the child lives, how the child spend time with the other parent and the nature of the communication between the child and parents. Our caring team at Bainbridge Legal can assist you with all aspects of parenting disputes, including assisting you negotiate with your former partner or representing you in proceedings in Court.
If you and your former partner can reach consensus as to how marital assets are to be divided you may elect to document the property settlement by entering into a binding financial agreement.
Binding Financial Agreements are not filed at the Court and in fact have the effect of ousting the jurisdiction of the Court to assess the terms of the agreement.
Setting aside a BFA
Binding Financial Agreements can be set aside by a Court in some circumstances including when there has been fraud in obtaining the agreement (including non-disclosure) or where there has been a material change in circumstances which would result in hardship.
Permitted timing for BFA
Binding Financial Agreements can be entered into at any stage of a relationship whether that be prior to the commencement of the relationship or after separation (and anywhere in between). BFAs can be drafted for parties to a de facto relationship or a marriage (or divorce).
Strict technical requirements
In order for the agreement to be valid and enforceable there are strict technical requirements that must be complied with. The agreement must be in writing and signed by both parties after receiving independent legal advice.
What is the difference between a BFA and consent orders? Consent orders are sealed by the Family Court of Australia whereas Binding Financial Agreements are not filed or sealed by any court.
Do I need a lawyer?
Yes. Each parties’ respective lawyers are required to provide a certificate confirming that they have advised on the effect of the agreement and its advantages and disadvantages.
Alternatively to a BFA, property settlement can be achieved through Consent Orders made by the Court, which has the same level of enforceability and certainty as any other court order.
Every case is unique. It is therefore critical that you retain experienced family lawyers to protect what you have worked hard for. Our compassionate family law experts will provide you with all the guidance and advice so that you know what your entitlements. We will work tirelessly for you to ensure that you achieve the best outcome. Time limitations apply to property settlement so do not delay in seeking legal advice.