How Property Matters are Finalised in Family Law
It is important that property matters such as property settlement agreements are finalised in a way which is binding otherwise either party can resile from the agreement and seek the involvement of the courts.
There are three ways to make the arrangement binding:
If by agreement then Consent Orders or a Financial Agreement would be applicable; if not by agreement, then there will be Orders following a trial. Read more on these options below.
Consent Order
Where parties reach an agreement, this can be drafted into Orders which are then filed with the Court along with a document called an Application for Consent Orders. The Registrar at the Court will consider the proposed Orders and if they are considered ‘just and equitable’ they will be ‘sealed by the Court’ and thereafter they will become binding and enforceable through the Court.
The Application for Consent Orders contains the information which the Registrar of the Court requires to determine whether the Agreement reached is ‘just and equitable’. When you use a lawyer to assist with your matter they will ensure that the agreement you reach will be considered ‘just and equitable’ and therefore that the Orders will be made by the Court.
Financial Agreement
A Financial Agreement is a binding document signed by both parties after receiving independent legal advice. It is enforceable through the courts but it is not usually advisable to use one in circumstances following the breakdown of a relationship as they are less certain than Consent Orders. The reason that they are less certain is that there are more situations in which their validity can be challenged than Consent Orders. One example is that it could be claimed that the legal advice received was wrong or inadequate and therefore the Orders should not be binding.
Financial Agreements are sometimes used where one party agrees to enter into an arrangement which would not be considered ‘just and equitable’. In these situations, it is possible that the Registrar might refuse to make the Orders as proposed without further investigation which would increase the legal fees of the parties. In circumstances where the agreement might be considered disadvantageous to one party it might be advisable to enter into a Financial Agreement as opposed to Consent Orders.
Orders Following a Trial
Where the parties have exhausted all avenues of dispute resolution and failed to reach an agreement, then a trial will need to take place before a Judge who will make Orders that he or she deems appropriate. It is actually quite rare that a matter will go to trial as the reality of the situation usually puts sufficient pressure on the parties that agreement is reached. These realities are the legal fees, emotional toll and time delay involved in taking a matter to trial.
Can I write my own settlement agreement or do I need a lawyer?
It is possible to prepare your own Property Settlement, however very few people are able to do it seamlessly. If you finalise your matter via a Binding Financial Agreement, you will each require a property settlement lawyer to advise you on the effect of the document on you personally.
Often at this point, we will find the document does not comply with the law meaning it will then need to be redrafted. We also find that many people change their minds about the agreement reached once they have seen a lawyer and this would once again require the document to be redrafted.
If you finalise your matter through Consent Orders, they will be overseen by a Registrar of the Family Court. Unless they are very basic, the Registrar will likely find that they are not in a form capable of being made into Consent Orders. These Orders usually need to be drafted by lawyers familiar with family law in order to be successful.
It is often harder and more time consuming for a lawyer to fix the Consent Orders drafted by a client themselves, filed with the Court and rejected, than it is to draft them from scratch.
Can I get Legal Aid for property settlement?
You are very unlikely to obtain Legal Aid for a property settlement. Legal Aid is usually only available for parenting matters.
How long after separation can you claim property settlement?
A property settlement matter can commence immediately upon separation. It is only an actual divorce order which cannot be made until 12 months after separation.
It is usually advisable to get a family lawyer’s advice on a property settlement immediately upon separation to ensure that you do not compromise your financial position.
Can you sell a house if one partner refuses?
Yes, but property settlement might take awhile. If one partner refuses to sell or buy out the other partner, then you will not be able to settle the matter and court proceedings will be required.
It is important to keep in mind that even if you commence court proceedings, very few family law matters make it through to being heard by a Judge at trial. The majority of them settle relatively early in the Court process.
How is property settlement calculated in a divorce?
A property settlement is not a mathematical calculation. Advice with respect to a likely outcome can only be given once all the circumstances are known by your property settlement lawyer, including contributions (both financial and non-financial) and any future needs including the care of children.
How much does a property settlement cost?
The cost varies from $5,000 (where both parties are co-operative and in agreement) to in excess of $100,000 if the matter proceeds to trial before a Judge. We find that most cases are finalised relatively easily with only some requiring mediation. The average cost is between $5,000 and $20,000.
Can my ex partner make a claim on my house?
It depends on your circumstances. If your relationship was short and your partner cannot show that they have made a contribution to your property then possibly not.
It is more likely that your house will be considered as part of a wider pool of assets, and while your partner may not end up with your house, they may get a greater share of the other assets of the relationship.
How do I buy my ex partner out of the house?
How much you will need to pay your ex to retain the house will depend on the circumstances of your matter and whether there are other assets to be offset against its value.
If you do retain the home, then an agreement will need to be reached on its value. Our property settlement lawyers can advise you on the best way to achieve agreement.
Once an agreement is reached on how much your ex partner will be paid (if anything), the matter must be finalised by either Consent Orders or a Binding Financial Agreement. This is so that you don’t have to pay stamp duty again on the transfer into your sole name.
