If your marriage or de facto relationship is ending, you should seek urgent legal advice about the division of the property of the relationship. Even if you have reached an agreement with your former partner, it is advisable to get a lawyer to give the matter a quick look and to help you draft “consent orders” for submission to the Family Court – in this way your property division is legally binding just as if you had been through a full court process, but without any of the hassle and expense.
In advising you about a proposed property settlement, a family lawyer will attempt to make a judgment about what a court would do if the matter were fully contested.
What will a court consider? Essentially, property division involves four steps.
- First, we identify and value the “pool” of assets of the relationship. This is more complicated than just listing all the assets and having them valued. Sometimes it will be necessary to consider whether “add backs” are necessary – such as where there has been a premature or improper distribution of the assets of the relationship (for example, one party has wasted money on things like gambling or purchasing gifts for a new partner).
- Second, we look at the contributions each party made – initially (ie contributions bought in to a relationship – such as equity in an existing property), during the relationship and since separation. Contributions are not limited to direct financial contributions – they can include things like staying home and caring for children thereby allowing the other party to work and earn income for the family.
- Third, we look at a wide range of factors subjective to the parties. For example – age and health, income and financial resources, employment capacity, child caring responsibilities and the maintenance of a reasonable standard of living (to name just a few).
- Fourth, we take a final look at what is “just and equitable” in all of the above circumstances.
The important point is that there is no precise mathematical formula. The process of advising on and negotiating a fair result is in many ways more of an art than a science. Most people will have no experience at all in the weighing exercise that is necessary to arrive at a fair outcome. This is why it is so important to have proper legal advice. We can help you with this process and assist you with the often complicated procedural steps necessary to finalise a property division.
It is important to note that the vast majority of property divisions are, in fact, negotiated reasonably easily – very few property matters end up being fully litigated. Legal representation (for both parties) can often lead to a swift and relatively inexpensive resolution. Family lawyers will be able to help the parties look at their matter objectively, determine what a court would be likely to do and assist to negotiate a reasonable resolution.
If you need assistance with a family law property settlement in South Australia, please feel free to contact Dewar Legal on (08) 8311 3964 to arrange a free consultation. You can also contact us by visiting our website.