Matrimonial Property Settlements

Question:
What happens if we can’t reach an agreement?
Answer:

If you cannot reach an agreement with your former spouse, you have the option of applying to the Family Law Courts for property orders. There are many reasons why you may not be able to reach an agreement, for example, if your former partner is being difficult or not disclosing assets you know exist.

Court proceedings can be an expensive exercise, and should only be considered as a last resort, but they are sometimes neccessary where negotiations have stalled. Your matter can, however, settle at any time through the Court process. The Family Court process also provides opportunities for structured negotiations between parties with a view to having the matter resolved. It is common for a settlement to be reached quite quickly once Court proceedings are issued which does help to keep legal costs as low as possible.

If however your matter does proceed to a Final Hearing then the Court will make a final decision as to how the marital assets are to be divided between the parties.

Question:
My partner and I have agreed how we want to divide our property, do I still need to see a lawyer?
Answer:

Yes.

It is important for your property agreement to be formalised into a legally binding settlement so that you are protected from the possibility of your former spouse making a further claim against your property in the future.

The only way that a family law property settlement can be made legally binding is for the parties to either:

  • Agree to Orders from the Family Court setting out the terms of the settlement; or
  • Enter into a Binding Financial Agreement.

Each of these options has their own advantages and disadvantages. Mackinnon Jacobs Lawyers can advise in relation to which document best suits your needs and tailor an agreement to your situation.

Question:
I have moved out of the matrimonial home and into a rental property. Do I need to pay half of the mortgage?
Answer:

Generally speaking, the Family Law Courts expect that the spouse who remains in the matrimonial home to be responsible for meeting the mortgage repayments and utilities bills. There are however sometimes circumstances where the Court will make Orders requiring the other party to assist with these expenses in the form of spousal maintenance. Mackinnon Jacobs Lawyers can advise you in respect of whether you are liable to pay spousal maintenance to your former partner or whether you can claim spousal maintenance from him or her.

Question:
My partner and I are living separately under the same roof. Can we enter into a property settlement?
Answer:

Yes.

There is no requirement under the Family Law Act that parties must be living apart before finalising their property matters. It is quite common for parties to be legally separated, but still living under the same roof as this often makes it easier to continue payment of joint expenses such as mortgage repayments.

Question:
Do I have to wait 12 months before negotiating a property settlement with my spouse?
Answer:

No.

Whilst parties must be separated for 12 months before applying for a Divorce, this time limit does not apply to matters concerning the division of property. A property settlement can, and should, be negotiated as soon as there is a separation.

Question:
What am I entitled to?
Answer:

As there is no set formula for calculating a party’s entitlements following a separation, it varies from case to case. The Family Law Act sets out a number of different issues that must be considered when determining how to divide the marital assets, such as:

  • The financial contribution made by each of the parties;
  • Any non-financial contribution made by the parties, including contributions as a homemaker or in parenting the children;
  • The relative income earning capacities of each party;
  • Each parties age and state of health;
  • Who has primary care of any children;

It is essential to obtain legal advice about what your entitlements may be before discussing any property settlement with your former spouse. Mackinnon Jacobs Lawyers offer a free half hour initial telephone consultation service so that you will be better prepared when entering into negotiations with your former spouse.

Question:
My partner and I have recently separated, what do I do now?
Answer:

Separation can be one of the most stressful and uncertain times in someone’s life and not knowing where you stand financially only makes this harder. If you have recently separated, or are contemplating separating from your partner, you should speak with a family lawyer straight away. Mackinnon Jacobs Lawyers can advise on all aspects of property settlement, your rights and entitlements and the options you have.