Separating your finances includes all of your assets and liabilities in your sole name or in joint names. It also includes superannuation if you are married. It is important to obtain legal advice regarding your rights and entitlements as soon as possible after separation. This will help you make informed decisions and guide you to achieve the best resolution for you and your ex-partner. Our Family Lawyers at West Coast Legal in Perth are able to offer you professional and helpful advice regarding your finances to ensure that you know what you’re entitled to.
If you wish to understand the process used to decide who should retain the assets and liabilities below is a simple explanation:
To begin there is a four step process used by the Family Court and family lawyers to guide you through the process of dividing your assets and liabilities.
The first step is to look at all the property that is owned by you and your ex-partner. That is, property separately owned and also jointly owned between you and your ex-partner. This may also include property owned by another person if either of you have a claim to that property.
Examples of property include houses, blocks of land, businesses, shares, motor vehicles, boats, yachts, trailers, savings, and furniture. Also superannuation will be included if you have been married. If you have been in a de-facto relationship, the superannuation will not be included as property but is looked upon as a future financial resource.
Also included is any debt such as mortgages, credit cards and loans which results is determining the net value of the assets.
The second step is look at the financial and non-financial contributions that each of you contributed at the beginning of the relationship and also during the relationship.
Financial contributions include wages, inheritances, gifts from your parents or others and savings that you may have had at the commencement of the relationship. This may include debt that either of you had accumulated prior to the relationship and was consequently paid off while you were together.
Non-financial contributions include taking care of your children and also housework and gardening.
The third step is to look at the future needs of both of you. This may include factors such as your future earning capacity compared to that of your ex-partner’s. This future earning capacity can be affected by the type of work you both do, who is going to take care of the children and if either of you have health issues, including mental and physical health. The court may make adjustments to the division of the property between you both based on future respective needs.
The fourth and final step is to consider whether the division of the property is just and equitable between you both given the circumstances you are both in. In relation to the Court, this may result in a final adjustment depending on each person’s particular circumstances.
Are there any time limits to getting a property settlement?
If you are married to your ex-partner, you have 12 months from the date your divorce becomes final to seek a property settlement through the Family Court.
If you were in a de-facto relationship with your ex-partner, you have two years from the date of separation to seek a property settlement through the Family Court.
There are some limited circumstances where the court will grant an extension to these time limits. However, you should seek immediate legal advice if you are close to or have passed the time limit and want to seek a property settlement.
With regards to sorting our your property issues it is not compulsory for you to attempt property settlement through Family Dispute Resolution. However, before you commence proceedings for property settlement in the Family Court you must do the following:
- You must complete pre-action procedures which will include trying to genuinely negotiate an agreement with your ex-partner. If you cannot come to an agreement you need to in writing advise your ex-partner that you intend to seek the assistance of the Family Court by starting a case in the Family Court. You also need to advise your ex-partner what the issues are and also what you will be seeking from the court.
- You must also disclose to each other any relevant financial information and documents which usually includes copy of bank statements, tax returns, credit card statements and superannuation statements.
The following are exceptions to attending FDR for property settlement:
- There are allegations of family Violence;
- There are allegations of fraud; or
- The matter is urgent.
What is Mediation or Family Dispute Resolution?
Mediation or Family dispute resolution (FDR) is a process where you and your ex partner meet with a family dispute resolution practitioner (FDRP) to try to sort out your family law issues about what do do about separating your property and finances.
What is Mediation or Family Dispute Resolution?
Below are links to Family Relationship Centres that offer FDR in both Perth and country areas.
Relationships Australia (http://www.relationshipswa.org.au/locations.aspx)
Citizens Advice Bureau (http://www.cabwa.com.au/about-us/branches)
Gosnells Community Legal Centre (http://gosclc.com.au/mediation/)
What happens after you have attended FDR?
If you reach an agreement through FDR you can formalise your agreement by including it in an application for consent orders and then file the application with the Family Court.
At West Coast Legal we can provide you with legal advice about your particular situation and guide you into the pathway you should take to best achieve a resolution for you and your ex-partner.