Paths to getting a property settlement
If you’re separating from your partner, or getting a divorce, a property settlement will be part of the decision-making process. Who gets what can be a source of conflict. Here are some ways you can get to a property settlement.
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Non-legal arrangement
If you can reach an agreement without taking any legal steps, you’re entering a non-legal arrangement. You may sell your property and divide the proceeds without making any application to a court. This process works for people who are separating amicably and are confident they will maintain a constructive relationship. However, either person still has the right to go to the court at a later time and ask for financial orders to be made. Not having a legal arrangement in place might not provide the certainty and finality some people want. Even if a property division is amicable, we would recommend it be legally documented (by way of a Consent Order or Binding Financial Agreed), This provides legal finality as well as some additional financial benefits, such as stamp duty exemption for the transfer of any property. We suggest you read our article “We’ve got an amicable agreement- what do we do now?”
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Binding Financial Agreement
Binding Financial Agreements can be entered into at any time before, during or after a marriage or de facto relationship. A Binding Financial Agreement can provide finality. As well as being enforceable, it will generally prevent either person from pursuing a property settlement. Despite its name, there are circumstances where a Financial Agreement can be set aside. Before signing a Binding Financial Agreement, each party must obtain independent legal advice.
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Consent orders
A consent order is a court order made with the consent of everyone involved. Consent orders are enforceable and by signing a consent order, it means you agree with the orders and are going to comply with them. Consent orders will be final, although in limited circumstances, the court does have the power to set them aside and make new orders.
Whilst not a requirement It’s recommended you get legal advice before signing Consent Orders.
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Litigation
Litigation means that the Court will determine how your property and finances will be divided after your separation. While the court can consider your preferences, by law the court cannot make the order unless it considers it to be just and equitable. Litigation may be necessary in some circumstances, but you should think about the financial and emotional costs involved, and how time-consuming it can be.
If you’re exploring litigation, we strongly urge you to obtain legal advice.
Whatever your circumstances, whether you’re looking at separation or divorce, or if you need advice about a property settlement, contact Michael Lynch Family Lawyers on: (07) 3221 4300 or email: [email protected] We’re here to help you through this time.
