Yours, Mine and Ours - What to Expect When Dividing the Property Following a Divorce or Separation
When a marriage or de-facto relationship breaks down, one of the most pressing issues that has to be dealt with is the question of "Who gets what?” - or how the assets that have been accumulated by a couple will be divided.
One of the biggest misunderstandings that many people have is that they need to go to Court in order to obtain a legally binding arrangement. In fact, there are many ways in which a separated couple can divide their assets without ever having to involve the Court.
When attempting to reach an agreement regarding property, the process can be done privately between the parties via the family dispute resolution process, or with the assistance of lawyers.
For couples who were married, there are essentially three options available to you:
1. By informal agreement between the two of you
These types of agreements are reached between two parties without being finalised legally. Often this approach is taken because there may be a chance of reconciliation and the arrangements are intended to be only temporary, or in some cases the parties simply choose not to work with a lawyer.
It is important to realise that there may be serious implications in the future if a property settlement agreement is not formalised or made legally binding.
2. By formal agreement, Consent Orders or a binding financial agreement
If a former couple is able to reach an agreement in respect to the division of their property there are two options available to make that agreement legally binding.
The first is by way of Consent Orders. This is essentially a document that is drafted by a solicitor and filed with the Court. Both parties sign the agreement and then send it to the Court for filing. The Registrar approves the Orders and seals them, and then sends the Orders to the parties by mail. The agreement is then legally binding on both parties. The couple does not need to attend the Court at any time.
Alternatively, after a process of negotiation between the two parties, a solicitor can draft an agreement, similar to other types of contracts, that sets out the way in which the property is to be divided. Each party signs this in the presence of a solicitor, after obtaining their own independent legal advice. Once the document is exchanged between the parties it becomes legally binding.
3. By Order of the Court
In some cases, parties are unable to reach an agreement concerning property settlement and a Court application is then required.
If there is no urgency regarding the matter, the Court encourages the parties and their solicitors to attend mediation, called a conciliation conference, which is conducted at the Court by a Registrar. If an agreement is reached and Orders are drafted and signed, the Registrar then has the power to make the Orders by consent on the same day as the conference. This avoids the need for further court attendances.
If you are in the process of separating, or would like to formalise a property settlement, please do not hesitate to contact one of our experienced family lawyers at CDQ. We can assist you with your negotiations and provide advice as to the best method of reaching an agreement in your particular situation.