Your property settlement doesn’t have to be all about the percentage – the structure is just as important as the percentage.
We will take a practical, future focused and problem solving approach to finding a solution that both works for you and ensures your legal rights and entitlements are protected and met.
The legal approach to working out your entitlement is important and follows a defined, 4 or 5, step process.
Whether you are married, living in a defacto relationship or a same sex relationship, the same “four step process” applies to working out how your property should be divided by looking at value, contributions, future needs and structuring of the final settlement. The rules that apply to specific relationship types (marriages and defacto relationships, including same sex relationships), are set out in different areas of the Family Law Act.
In some states in Australia, the rules in relation to defacto and same sex couples are different. The majority of States however have adopted the Family Law Act regime. If you live outside QLD we can advise you about which law applies to you.
If you have been in a defacto relationship that ended before 1 March 2009 the rules and processes that apply to you will be different to those under the Family Law Act. If this situation applies to you, please contact us and we can advise on your rights and entitlements.
THE FOUR STEP PROCESS
Whilst there is no mathematical equation that we can apply to determine what division of property is “just and equitable” on the breakdown of a marriage or a defacto relationship. There is a fairly clear 4 step process to follow. In some cases there is a 5th step – whether there should be a property settlement order made at all. When you contact us we can advise you whether this 5th step might be applicable to your case.
STEP 1 – Identify and value the assets of your relationship
We will need to acquire as much detail as we can about your assets and liabilities, whether those are in your name, your spouses name, or a trust or a company name.
STEP 2 – Determine what financial and non-financial contributions each of you have made to the build up of the assets and liabilities of your relationship
You will need to give us information about assets and liabilities each of you had at the beginning or your relationship, any inheritances, gifts or other lump sums either of you have received as well as your employment and care for you family and children.
STEP 3 –Establish your future needs
We need to look at your respective earning capacities, your state of health and that of the children, the number and ages of the children and how they are to be cared for and a range of other facts that might give us some insight into your future needs.
STEP 4 – Outline a settlement structure
We look at how any settlement might be structured to ensure that the outcome is a just and equitable one. We will discuss whether, for example retaining your home is more important than retaining a large amount of superannuation, or visa versa, or a whole range of other issues around which assets are to be retained, which are to be sold and which are to be shared in some way.
We will help you decide which assets you are happy to sell and which you want to retain.
We will look at ways to retain important assets such as your business or your home and how best to maintain or grow your earning capacity.
We will work with your accountant, tax advisors and financial advisors to structure a settlement that best meets your needs both now and into the future.
We are often asked by clients about options to protect assets that are in the control of one spouse only. A concern about assets being sold, transferred or dealt with in a way that diminishes their real value is a common one.
There are a variety of options available to address these concerns and ensure assets are protected during the negotiation or Court process. You may well need advice about the possibility of lodging a caveat over real property or obtaining an injunction for the Court to prevent your former spouse or partner from selling assets, taking out a mortgage or increasing debt.
The most important thing you can do is to ask for our advice and assistance as early as possible and provide us with as much information as you have about the potential dangers.
We will give you immediate and practical advice about what you can do to best protect your assets so they are available for division as intended by the legislation.