A property settlement is the term commonly used in family law proceedings as a reference to the process of splitting the property and financial affairs of parties to a marriage or de facto relationship after separation.
Our family law team in Perth and Joondalup have the skills, experience and sensitivity to assist you through what can be a difficult, emotional and complicated process.
Can assets be divided before a divorce?
Yes. The process of the separation of property and financial assets usually starts soon after separation. There is no need to wait until after the divorce. Divorce is a separate process.
How are assets divided after a separation?
Assets and liabilities are divided either by agreement or, if there is no agreement, by orders of the Family Court of Western Australia.
An agreement on a property settlement has to comply with the certain legal requirements to be binding and documented either by an agreement called a Binding Financial Agreement or by orders by the Family Court by agreement between the parties.
How does the property settlement process work?
If an agreement is reached on the division of property and financial assets, an application can be made to the Family Court of Western Australia to record the consent by order made by the Court. Alternatively, the parties can enter into a binding financial agreement.
If there is no agreement, in the absence of circumstances requiring urgent attention, parties must attempt resolution of the dispute by mediation, arbitration or some other recognised dispute resolution process.
If there is no resolution after the dispute resolution process, legal proceedings can be commenced after compliance with certain other pre-action formalities called Pre-Action Procedures. The commencement of legal proceedings involves filing several court documents, paying court fees and serving the documents on the other party to the proceedings. Thereafter court attendances, conferences and hearings will be by the Family Court.
It generally takes at least two years to get to the final hearing or trial from the time legal proceedings are commenced. It could take longer depending on the complexity of the matter or extent of the dispute. Most cases, however, settle well before trial.
Who gets what in a divorce and how is it decided?
The Family Court of Western Australia determines the division of property and financial matters in a four-stage process.
The first step is to calculate the net asset pool of both parties by subtracting the value of the all the assets by the liabilities of each party.
The net asset pool includes joint and separately owned assets including:
- real estate property;
- businesses; and
- bank accounts.
Next the Court assesses each parties’ contributions to the acquisition of the assets. There are three types of contributions:
- financial contributions;
- non-financial contributions; and
- homemaker/parent contributions.
The Court then determines the percentage split of the net asset pool.
The Court assesses the parties’ future needs and adjusts the percentage split of net assets accordingly. The factors considered include:
- earning capacity;
- financial resources;
- care of children under 18; and
- child support payments.
In the final stage, the Court considers whether the proposed percentage split of the net assets is just and equitable. The Court considers the specific circumstances of both parties, the merits of the respective arguments and makes its decision.
CS Legal can make property settlement seamless
Our team of family lawyers have the expertise and skills to assist you with your property and financial issues. We are focused on getting the best outcome for you and aim to resolve disputes as amicably and cost-effectively as possible.
Our property lawyers and conveyancers are able to seamlessly take over dealing with the transfer of any other assets, land or property, required as part of the property settlement – saving you time and money.