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Separation: Understanding Your Rights and Entitlements

If you have recently separated from a marriage or de facto relationship, you may be wondering what your rights or entitlements are in relation to property settlement. Separation is stressful enough without having to deal with finances and property, but knowing your rights and entitlements is a vital part of protecting your own interests during this volatile time. In today’s article, we have a look at everything you need to know when it comes to separation entitlements, so keep on reading to find out more.

Marriage VS De Facto

One of the common questions we receive when it comes to separation entitlements is whether there is a difference in rights/entitlements for married vs de facto couples. Under the Family Law Act (applicable in all states and territories except Western Australia), de facto couples have the same rights as married couples in relation to the distribution of property. The main difference when it comes to married vs de facto couples is that married couples are not required to be divorced to get a property settlement worked out.  On the other hand, de facto couples have two years from the date of separation to work out their property settlement, in accordance with section 44 of the Family Law Act. Failure to lodge an application within this timeframe may result in parties being barred from seeking orders about property division unless the Court grants permission to file an application outside of time.

Determining “Property Of The Relationship” 

When it comes to figuring out your rights and entitlements during separation, we first need to identify or determine what constitutes “property of the relationship”. This may include:
  • The family home.
  • Cars, boats and other vehicles;
  • Household and personal items, such as furniture, white goods and jewellery;
  • Superannuation;
  • Business and property investments;
  • Home loan debt; and
  • Money owing on credit cards or personal loans.

Mediation Is The First Step 

In most family law cases, mediation is always recommended as the first choice of conflict management. Mediation is cheaper, quicker, more accessible and less stressful than a Family Law Court case. With the help of a  neutral mediator, parties can undertake a similar process that is taken by the court to work out a fair settlement for both. Agreements made through mediation can be formalised by the Family Court as binding Consent Orders.  Mediation is a fantastic way to empower both parties involved and favours a collaborative, peaceful and amicable approach to coming up with resolutions that are fair to all parties involved. If you would like to know more about mediation, be sure to get in touch with one of our team members today. 

If both parties are unable to come to an agreement on a fair settlement, the next step is to allow the courts to handle the settlement. 

How Are Entitlements Sorted Out By The Courts?

Many people believe that when it comes to entitlements, most couples will end up with a 50/50 split. However, this notion is highly inaccurate. In reality, there is a four-step process for working out what percentage of the property each of you should get. This process is used by family lawyers and the courts in determining a fair settlement.

Step 1: Working out the matrimonial asset pool. The Court must identify and value the parties’ property, liabilities and financial resources. Some of these, as mentioned above, include the family home, motor vehicles, shares, mortgages, personal loans, superannuation, inheritances and gifts. 

Step 2: Assessing and allowing for contributions to the asset pool. The Court must examine the contributions made by either party, both financial and non-financial, direct and indirect. Both past contributions and contributions made after separation are considered.

Step 3: Analysing and allowing for the future financial needs of each partner. The Court must consider the future needs of the parties to determine whether adjustments should be made to the percentage of the asset pool that parties are entitled to.

Some of the deciding factors may include:
  • Age and health of the parties;
  • Income, property and financial resources of the parties;
  • Care and control of any children involved;
  • Capacity for future employment; 
  • Eligibility for pensions, allowances or benefits;
  • Duration of the relationship;
  • The provision of child support made by the parties; and
  • The terms of any financial agreements binding upon the parties.
Step 4: Lastly, the Court must evaluate whether the proposed order for property settlement is fair and equitable under all circumstances. The Court must be satisfied with the proposed settlement before it is finalised. 

How Can I Obtain A Settlement? 

The rights and entitlements of separation can be a tricky and time-consuming affair to navigate. We always recommend seeking legal advice as soon as possible, and our team of expert family lawyers are here to assist you through every step of your separation. Call us today at (03) 9670 7577 to find out more.