Following relationship breakdown, settlement of property matters can become complicated, drawn out and expensive. Sound, specialist, independent legal advice is strongly recommended to assist in the fair division of property.
An agreed property settlement can be finalised by a Consent Court Order or Financial Agreement. Parties do not need to “go to court” to obtain a Consent Order. The application for Consent Orders is lodged with the court, considered by a Registrar and, if approved, an Order is made thus finalising the matter.
A property settlement reached by a Consent Court Order or a Financial Agreement in accordance with the Family Law Act is binding and final and prevents future claims and often allows for stamp duty exemptions on the transfer of property.
When the parties are unable to negotiate a settlement, one of the parties will file an Application in the court and the court will determine the division of property upon the application of that party.
Family law is a specialist area of law which is constantly changing and expert specialist advice is necessary to properly prepare court documents as to do otherwise could seriously and adversely affect the outcome of your case.
If negotiations for a property settlement are not successful, proceedings must be instituted. The documents required are:
- An Initiating Application, which lists the orders you seek that the court make on a final determination. It may be necessary from the first court appearance to obtain orders to assist in the court process and may also require urgent orders which are referred to as interim orders;
- An Affidavit. This is a sworn document establishing your evidence in support of the reasons why the court should make the orders that are set out in your Initiating Application. That evidence must meet the requirements of Section 79(4) and 75(2) of the Family Law Act 1975;
- A Financial Statement. This sworn document lists your weekly income and expenses, your assets (including superannuation entitlements) and any liability.
It is not necessary to wait for divorce proceedings to be initiated or finalised before a property settlement is negotiated. However, applications for property settlement and spousal maintenance must be commenced within one year of a divorce being granted. We recommend you commence negotiations shortly after separation to allow sufficient time to prepare and file an application if negotiations are not fruitful.
We can help with current or future family law issues or estate planning matters.
Please contact our Accredited Family Law Specialist, Peter Pavusa on (07) 3252 5044 to discuss, or email Peter.Pavusa@merthyrlaw.com.au