Property and Financial Settlements
A property settlement is the process of finally dividing assets between spouses following the breakdown of a marriage or de facto relationship. Each property settlement case is unique and involves varying levels of analysis depending on the asset pool, and the complexity of financial arrangements of spouses during the relationship.
The process may involve having to take early action prior to the final division in order to preserve assets, which may be at risk of being disposed of by a spouse, or to stop a spouse doing things which are, or may be diminishing the value of the assets. It is crucial in this process that the legal work in dividing assets is undertaken in partnership with accountants, financial planners, and tax experts. This will ensure that a spouse retains those assets which will be the most financially beneficial for them in the future in the context of their individual circumstances.
Generally in determining a property settlement:
1. There is no presumption or a starting point that the assets, liabilities and superannuation interests are to be divided equally;
2. There is no formula or method of calculation applied to any settlement of property which leads to a predictable result. It is a discretionary exercise. It is not performed by a mathematical or accounting exercise. The Court has a wide discretion in determining a just and equitable property settlement. Three Judges determining the matter may all decide the matter differently and all arrive at a just and equitable decision.
3. While a detailed examination is important, the assessment of contributions is not an exercise involving a minute clinical examination so as to turn the exercise into a pure mathematical evaluation;
4. Non-financial contributions to the home and family are to be recognised in a substantial way;
5. Generally, no asset is quarantined or excluded from consideration by the Court and can include property you owned at the time you began living together and received while living together and after separation;
6. The net value, not the gross value of the 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 (not the date of separation);
7. Generally, the Court assesses the parties entitlement using a global approach whereby the division is undertaken on global view of the assets, rather than determining the parties interests in each individual item of property;
8. There may be circumstances in which the Court applies a “ two pools” approach where non-superannuation assets and superannuation assets receive separate treatment; and
9. It is vitally important that each spouse makes full and frank disclosure of his or her financial position at all times. A failure to make full and frank disclosure can result in property orders being set aside and there are other consequences, including costs orders if a spouse is put to the expense of establishing the existence of the asset that has not been disclosed.
The team at Waller Family Lawyers understands that Property and Financial Settlements can often be a complex and stressful situation for those involved, however you can rest assured that your property and financial needs are in trusted hands. To hear from one of the dedicated team members and for more information on Property and Financial Settlements and how Waller Family Lawyers can help you, please fill out a contact form.
Related Case Studies
The team acted for the former husband of a Wife in Papua New Guinea.
Property Settlement and Taxation
The team acted for a spouse who owned several businesses through various corporate and trust structures. She was potentially faced with catastrophic tax debts as a result of the division of property.