Property Settlement

If your relationship breaks down, you will generally benefit from getting legal advice before you embark upon dividing the property that you and your former partner have accumulated, during the relationship. At Dimocks Family Lawyers, we have skilled and experienced property settlement lawyers who can draw on many years of experience to advise you as to what would be an appropriate settlement. Their advice is informed by their legal knowledge, as well as their personal experience of Court outcomes. They will also take you through the procedures (such as mediation and arbitration) that are available to you in resolving a property dispute without Court intervention, and they will explain to you that a Court–ordered outcome could be 2–3 years away, such are the delays in the current family law system.

The Courts essentially apply the same principles to property disputes between married, same sex and de facto couples. A four-step process is generally applied, requiring:

• the determination and (if necessary) valuation of the assets, liabilities and financial resources (for example, superannuation) that are available for distribution;
• an assessment and evaluation of the many and varied contributions of the parties, both financial (most commonly, a contribution of employment income) and non-financial (for example, caring for children and maintaining the home);
• thirdly, the question is asked as to whether an adjustment should be made in favour of one party or the other, because (for example) one party may have a superior earning capacity and the other party has responsibility for caring for school-aged children; and
• after the first three steps listed above, one must ask whether the outcome thereby arrived at is just and equitable, or whether a further adjustment is required.

Valuing the Assets

In some cases, this is a straightforward exercise. In others, where agreement cannot be reached as to the value of real estate or a business, the parties will generally be encouraged to jointly instruct a “single expert” to value that property or business. At the outset, it may also be prudent to request the other party to provide disclosure of his or her assets, for example by requesting copies of taxation returns, bank statements and so on.

Assessment of Contributions

If we are appointed as your lawyers, we may need to take comprehensive instructions from you as to the history of your contributions (both financial and non-financial) over what might be a long period of living together. As a general rule, the shorter the period of cohabitation, the greater the significance of direct financial contributions made by a party who brings assets into the relationship, or who receives a windfall (such as an inheritance) during the relationship. As specialist family lawyers, we will advise you as to the weight that should be attached to certain contributions, and whether we consider that you have made significantly greater contributions than those of your former partner. We will tell you that there is no presumption of an equal division of the available assets and financial resources, even after a long relationship.

Financial needs

If you have special financial needs or the responsibility for looking after young children, we may advise you that you should receive a greater share of the net pool of assets. The most significant factors for consideration here are generally an imbalance in the earning capacity of the parties, perhaps because one party has put his or her career on hold in order to care for the children of the family; the ongoing responsibility of looking after those children; or a medical condition or other financial burden, that the other party will not have to bear, following separation.

The “just and equitable” step

When the three previous steps have been considered, our lawyers will be asking the question – as would a Court, if the matter went all the way to a hearing – as to whether the proposed settlement is just and equitable in all the circumstances.

Our specialist lawyers will explain the legal principles to you and apply them to your own situation, whilst acknowledging that your circumstances are unique. We will guide you through the Court’s processes if necessary and encourage you to achieve an outcome that is not only fair, but also timely and cost-effective.