The Family Law Property Settlement Process in Australia
When people separate (whether from a marriage or a de facto relationship), they will usually need to sort out how to divide their property. If it is safe to do so and if you are able, a cost effective and efficient way to achieve this is to reach an agreement with your former partner.
In family law, property means all assets, liabilities and financial resources that you and your former partner own or have an interest in. This includes things that are owned by you, or things that you have responsibility for, as well as things that are in both your names.
The vast majority of family law matters, about ninety-five per cent (95%), do settle without the need for a Judge to make a decision.
No Fault Family Law Act
In 1975 the very progressive “no fault” Family Law Act, 1975(Cth) (“the 1975 Act”) was introduced by the Labor Attorney General Lionel Murphy during the Cough Whitlam Government.
The 1975 Act turned divorce law on its head. Parties no longer needed private detectives to prove adultery, habitual drunkenness, insanity, desertion.
The Court no longer needs to know why an applicant wants to divorce, the reasons are private.
All that matters is that the marriage broke down irretrievably and the parties have been separated for no less than twelve months at the time of seeking a divorce.
Fear of the Unknown
When clients first come to see a solicitor about their relationship they are often:
- Stressed and uncertain:
- In an unfamiliar situation
- Out of their comfort zone
- Facing a family law matter with the ex
- Possible Court proceedings
To relieve some of the stress it is important to give the client a sense of control, this normally involves getting informed about their legal options and the processes involved in settling the matter.
Going through the process provides you, the client, with practical examples and information on the ways parties can finalise your property settlement.
Step One / Get informed about the law
As it applies to the client’s case.
- Children
- Property
- Child support
- Options available
- Legal recourses.
Step Two / Get informed about the facts
- The value of the assets/ the liabilities
- What are the assets
- Superannuation entitlements.
- How much will it cost
- Sometimes, the costs’ implications are a major consideration.
Step Three/ Get informed about the family law process
- How the system thinks
- The system expects parties to try to settle their dispute
- Even before court proceedings are commenced.
Parties must
- Exchange all relevant information/ documentation between them
- Negotiate
- Attend mediation
- Make offers of settlement
- In children’s matters – section 60(I) Certificate needed
Step Four/ devise a Case Plan jointly with the Solicitor
- Once you have all the facts/ you have received advice about the law
- You know the likely range fo outcomes if the matter goes to Court
- What outcome does the client wish?
- Realistic
- Too ambitious
- Not ambitious enough
- We need to work out how to get there
- Tactics/ strategy
- The Case Plan may need to be varied form tiem tom time
- The alternative – drift.
Step Five / be prepared to make offers of settlement
- The client needs to become somewhat schizophrenic
- Offers are confidential
- The Judge does not know that an offer has been made
- The “official” position may be, usually is, different that the confidential position
- Mentioned in offers of settlement.
- Clever position to adopt
- What’s the most generous offer you are prepared to make which you believe the opposing party will not accept
- If realistic, that could be the basis of an application that the other party pay your costs
- If the final outcome by a Court is as good as the offer you made
- Or less generous to the other party.
Finally
If each party completes the five steps outlined above, they will be better placed to enter into negotiations.
Dispute Resolution
At this stage, parties are ready to engage in negotiation or other dispute resolution processes. Dispute resolution at this level is often a more effective approach for resolving conflicts compared to going to court, as it provides greater flexibility. While a judge is constrained by a limited set of remedies, the parties involved can consider a broader range of creative solutions tailored to their specific circumstances.
If you would like advice on drafting a Family Property Settlement, please contact us:
Email: info@turinimckeanlaw.com.au or
Phone: +61 2 61983384
