A property settlement is the process of finally dividing assets between spouses, following the breakdown of a marriage or de facto relationship.
When a marriage or a de facto relationship breaks down it is important to resolve a property settlement as soon as possible time limits may apply.
A property settlement is the reaching of resolution on the division of assets you and your spouse either own individually or jointly including assets that are owned by a trust or company that one or both of you control.
It is important to know that each case is different and it does not involve a mathematical exercise, no formula is applied to obtain a predictable result. It is a discretionary exercise given this inherent discretion and the impossibility of predicting a certain outcome our job is to provide your worst case and best case and achieve the most successful outcome within those parameters.
In looking at a property settlement:
1. There is no presumption or starting point that the assets are to be divided equally.
2. Non-financial contributions to the home and family are recognized in a substantial way.
3. Generally no asset is quarantined or excluded from consideration and can include assets you owned at the time you began living together while living together and after separation.
4. The net value not the gross value of assets is applied ordinarily the value assigned to an asset is its current value at the time of agreement a court application or final hearing.
At the end of the day you have to agree or if you can’t agree a court will have to decide essentially two things:
1. The division of the assets liabilities and superannuation interests of each and both of you is determined and expressed as a percentage.
2. What assets liabilities and superannuation interests that each of you are to receive or retain to constitute your percentage entitlement.
While it is a discretionary exercise in reaching a property settlement the law requires us to work through a step process in determining the percentage division:
1. Identify and value the current assets liabilities and superannuation interests.
2. Identify and evaluate your respective contributions.
3. Assess the present and future needs.
Factors often cause an adjustment are a fact that one party may have a greater earning capacity than the other that one of the parties will continue to be predominantly responsible for the care of a child or children or that one of the parties has a significant health issue compared to the other. Once the above steps are all considered and a determination of the division of the assets liabilities and superannuation interests between you both is then reached either by agreement or by the court.
If you have a property settlement matter you wish to discuss confidentially please not hesitate in contacting me or one of my team.