How does a property settlement occur?

April 1, 2016

Property division can be a tiresome, complex and stressful exercise that can often be the driving factor of a dispute between estranged couples. How exactly property will be split between the parties and who has rights over specific chattels can be a drawn out process of negotiation and Court appearances.

There are several ways that assets can be distributed after the breakdown of a relationship and in all matters, parties will choose to cooperate at different levels. In some cases, the lucky few, parties will simply come to an arrangement about which particular asset will be kept by each side and which, if anything, will be sold. In some matters it may be advisable for the parties to come to a mutual agreement about all property and have the Court formalise this by way of consent order to ensure that the agreement is legally binding. As these decisions can have a significant impact on the financial status of each party moving forward, it is important for these decisions to be considered carefully.

Mutual Agreement
If it seems that coming to an agreement is possible, then each party must obtain independent legal and financial advice about the agreement to ensure that it is legally enforceable. Both parties must be advised of their rights and any implications of a binding financial agreement. In addition, getting an expert’s advice is important in making sure that the agreement that is reached, covers all the possibilities and doesn’t run the risk of uncertainty and further disputes in the future.

Factors of a Property Matter
In a large amount of cases, individuals find the need to go to Court in order to determine how property will be divided. In addition to the distribution of assets at the time of separation, it may be worth considering applying to the Court for orders about maintenance or child support. Before doing so, it is however necessary to demonstrate that parties have made a genuine effort to resolve family law matters prior to Court. This can be achieved through a number of avenues such as mediation or conciliation conferences. In addition to this, the Court will have regard to future requirements of each party. This means that the Court will consider aspects such as the age, earning capacities, health and of course, the need to provide for any children. It must be noted however, that there is no set method that will be used in the division of martial assets. Despite what any legal representative may advise, there is no way of knowing exactly what order will be made in relation to property. The decision will be the result of the Court having heard all evidence and deciding upon what is fair based on the circumstances of that particular matter.

Whatever your situation, it is always helpful to have the guidance of an experienced family lawyer. Having an understanding of what one might be legally entitled to, is vital in making informed decisions. The Court considers a variety of factors including what each partner owns and owes, the financial contributions each partner has made to the relationship, the non-financial contributions to the relationship and the future requirements of each partner. This mix of factors can make it difficult to know where you stand, so an experienced professional can provide invaluable insight into likely outcomes and what your options really are, and how to proceed to ensure a fair outcome.

The content of this article is intended to provide a general overview of the subject matter and is not be relied upon as giving legal advice. Specialist advice should be sought about your specific circumstances.