Separation from a relationship can be a traumatic and stressful experience. When a relationship ends, it’s never easy, and it’s common for people to feel adrift and unsure of what to do next. At the forefront of their mind, is often a divorce property settlement. Aside from the emotional toll, there are also financial and legal aspects to consider after separation. This all of course happens when you’re often not in a great emotional space to deal with them effectively. In this article, we give you some clarity on the path and options ahead, as well as debunk a few myths.

Divorce Property Settlement

When considering a divorce property settlement, a key thing to understand is reaching a financial agreement with your former partner, including a property settlement is a vital aspect of this process that can help you both move forward with your life. For example, if you have reached an agreement on parenting and/or property matters, you can get a ‘Consent Order’ from the Family Court of Australia to make that agreement legally binding.

Here, we’ll look at how to get a Consent Order, what to do if you and your partner can’t come to an agreement, and other family law issues to think about the following separation.

What is a Consent Order, and How does it Work?

A Consent Order is a written agreement that the Court has approved. A Consent Order can address both parental and financial arrangements such as property and care for children. In order for a Consent Order to be finalized, the Court must be satisfied that the agreement reached is both just and equitable, as well as in the “best interests” of any children involved in the relationship. Our family lawyers at Mediations Australia can help you in this regard.

What is the procedure for obtaining a Consent Order?

A Consent Order can be obtained directly from the Federal Circuit and Family Court of Australia. You run the danger of the court rejecting your application for consent orders if you don’t get competent legal guidance from an experienced family lawyer, as well as overlooking critical components of the proposed parenting/property arrangements. It’s critical that you take these documents seriously. Think of them as a contract. You wouldn’t dare construct your own contract, so be very careful about considering drafting consent orders. Once consent orders have been endorsed by the Court, it can be very difficult and expensive to have them changed.

We can assist you in preparing the Consent Order and answering any concerns you may have concerning the separation process, including property settlement issues, parenting arrangements, and other family law issues.

It’s also worth noting that initiating an application for a Consent Order for property settlement or parenting/child support issues has a time limit. The application must be submitted within the following timeframes:

• For married couples, one year from the date of divorce.
• De facto couples have two years from the date of separation.

Here is much more information about consent orders.

What if My Partner and I are unable to agree on matters relating to Property and/or Parenting?

There is assistance available if you and your former spouse are having trouble reaching an agreement on property or family/parenting issues. Importantly, seek the opinion of an expert family lawyer who can offer specialized guidance on how to best settle legal disputes and how to ensure that you reach a fair and equitable arrangement. It is critical to understand your legal rights and duties, as the legal system can be complicated. An initial consultation with a family lawyer will give you clarity and the beauty about Mediations Australia is that if following your free, initial consultation with our family lawyer, if there is potential to resolve the issues promptly, one of our mediators can be brought into the picture seamlessly.

In this context, family law doesn’t need to be a high conflict sport. In other words, it is far better to resolve these matters promptly. The alternative is expensive and will emotionally drain you and all those involved. The courts these days make it very difficult to litigate because they know firsthand that having a judge decide matters for you is by far the best way to get outcomes that you and your former spouse are happy with.

Here are the ways that we can assist you to resolve your matter without Litigation.

Mediation – Mediation is a process in which a mediator, who is a neutral third party, assists people in a dispute in reaching a mutually acceptable agreement with respect to the relevant issues. The outcome of the mediation is in the hands of the participants. In other words, you and your ex-spouse are in control over the outcome, as opposed to a Judge.

To enable the parties to reach their own agreement, a mediator stimulates dialogue, improves understanding, aids the parties in identifying their needs and interests, and applies innovative problem-solving strategies.

No one forces a solution on a party, unlike in court or arbitration. The disagreement will remain unsolved if all of the parties do not agree on the outcome.

If previous conversations have failed, mediation offers an alternate option to litigation. The variety of potential solutions reached during mediation is frequently wider than the remedies available in courts and tribunals, or even in long-term negotiations.

Mediation is significantly cheaper than litigation, with 90% of issues being resolved in one day of mediation.

At Mediations Australia, we can assist you with your mediation questions. Book a free consultation.

Arbitration — This normally entails a third-party (an “Arbitrator”) meeting with you and your former husband or de facto partner (and, in most cases, your legal representation) to discuss the facts and arguments in disagreement. The Arbitrator, who is usually a senior barrister or a former judge, makes a well-informed judgment about how to resolve the disagreement. Arbitration is a process in which disputants present their arguments and evidence to a dispute resolution practitioner (the arbitrator), who then renders a decision. The procedure is private and can be kept anonymous if both parties agree. Arbitration is a flexible and efficient method of settling domestic and international conflicts. The arbitral tribunal’s decision is final and binding.

At Mediations Australia, we can assist you with the arbitration.

Collaborative Law – Collaborative law is a form of alternative conflict resolution that allows both parties and their lawyers to sign a contract (the “Participation Agreement”) to finalize any legal elements of their separation or divorce without having to go to court. The procedure employs an interest-based negotiating paradigm, in which the disputants and their lawyers work together to reach a mutually advantageous conclusion based on their mutual interests. Any desires, ambitions, concerns, or anxieties could be among these interests.

Property Settlement Questions

Is the property pool valued at the time of separation or at the time of settlement or trial?

It’s a frequent fallacy that only assets, liabilities, and superannuation that existed at the time of separation are included in the property pool and that they are valued at that time. This isn’t the case at all. Any property that exists at the time of the agreement or at the time of the trial is included in the matrimonial property pool at its current market value. If you buy a house after you’ve separated, for example, the value of the house can be included in the property pool.

If you want to maintain the matrimonial house as part of the property settlement, keep in mind that in today’s market, the home may appreciate in value faster than other assets in the property pool.

Any inheritances or other windfalls you get after your divorce but before reaching an agreement will be included in the property settlement. Similarly, if your ex accrues debt after the divorce, that debt may be included in the property pool, reducing the total assets available for distribution between you and your ex.

Hence why it is essential to resolve your property settlement as soon as possible following separation.

Do property settlement disputes become more complex over time?

Your property settlement may grow more problematic as time passes following your divorce because of:

• Your relationship with your ex is deteriorating. While some spouses retain a friendly connection after their divorce, this could swiftly deteriorate. If you and your ex have a good connection, you should strive to reach an agreement as quickly as feasible. You should obtain legal counsel so that you know what a reasonable offer to make to your ex is, as you don’t want to be in a position where you’re making offers that are significantly less than what you’re entitled to or that could result in an unfair outcome for you.
• Expenses incurred after separation. You may want to finalize your property settlement as soon as possible if you know your ex isn’t good with money or has a habit of living over their means. This will save you from having to argue about whether your ex’s spending was acceptable and whether it should be returned to the property pool and treated as property your ex has already received in the property settlement.
• Future requirements It’s likely that your or your ex’s circumstances will change after you’ve separated, affecting your property settlement. For example, if your ex is currently employed in a high-paying position but is laid off and unable to find another job, or if your ex has children with a new partner, this would be considered when determining what your and your ex’s future needs are and could affect the amount you receive in the property settlement.

What Should You Do Now?

Family law matters are complex. We recommend legal advice at the outset. At Mediations Australia, we’re early resolution focused. we have a team of family lawyers and mediators who can assist you in Canberra, Perth, Adelaide, Melbourne, Sydney, and all other locations in Australia. Get legal advice from us today!