Our Property Law & Financial Settlement lawyers will protect your assets and ensure your financial security.
Where will you live? What will happen to your home? How will you have enough money to support your children? These are some of the questions that may be running through your head when you first separate. We will look at your entire financial history including that of your partners. From there, our Property Law & Financial Settlement Lawyers can advise you what your financial future will look like.
We will do a comprehensive audit of your financial position to ensure that you receive as much as possible. In some situations, your home may not be in both names and you may be feeling scared and insecure about the future of your main asset. By placing a Caveat over the home, we can protect the asset or assets you are most concerned about. This will give you peace of mind that your partner can not sell or dispose of the property without your consent or Court Order.
When making a financial decision for your future, Oxford Partners Lawyers always look at what is the most sensible and commercially viable result. If we believe that your legal fees will exceed what you will achieve out of a property settlement, we will be honest with you at your initial consultation.
Property or financial settlement agreements are generally prefaced by both parties first fulfilling their duty of financial disclosure. For this reason, settlements can take weeks or months, especially if the property and other assets cannot be divided equally and parties may have specific demands for the outcomes related to these settlements.
Upon finalising a property or financial settlement under family law, neither party will need to pay capital gains tax during the transfer of ownership of either the family home or of any investment properties that were shared by the parties during the marriage. Capital gains tax will be applicable, however, if these assets are ever sold to other external third parties. In a similar fashion, the state government no longer treats spousal maintenance as taxable income as well, meaning there are actually very few tax considerations that need to be made throughout divorce or separation proceedings Any former spouses who have finalised their divorce or separation after the 31st of December 2018, are ineligible to claim spousal maintenance costs back on tax, nor are they required to pay income tax on spousal support.
There are generally very few changes that can be made to property or financial settlement agreements upon finalisation, as settlements generally take into consideration the future needs of both parties to ensure all settlements reach a fair and just outcome. You can find a more in-depth answer to this question in our guide to property settlements under the Family Law Act.
Whilst it is possible to secure a divorce prior to a property or financial settlement being finalised, it’s generally recommended that settlements are resolved prior to divorce proceedings, as there is a strict time limit in place with regards to property or financial settlement agreement following divorce, with the state allowing a maximum of one year for parties to reach a mutually beneficial arrangement following the finalisation of their divorce. Whilst it is possible to apply for extensions, it’s far more cost-effective to finalise these settlements prior to obtaining a divorce.
The most common cuments that you’ll need to provide during property or financial settlements are bank statements, tax returns, superannuation statements, asset valuations or appraisals, documentation outlining personal debts such as mortgage repayments, as well as other documentation regarding inheritances, compensation, and other records regarding shared assets or of financial claims made throughout the marriage. It’s always best to feel over-prepared in property and financial settlements, as you can keep your family law costs low by ensuring no time is wasted searching for lost documents.
Part of the legal separation or divorce process involves the settlement of property and finances that aligns with the entitlements of both parties. The final settlement of property and finances can vary depending on a variety of factors, but each person is entitled to a percentage of the assets, liabilities and financial resources held jointly or individually, whether they were acquired prior, during or after the relationship. This may include income, property, household items, artwork or business rights.
The property settlement process can begin as soon as both parties separate, however property can still be claimed up to two years after a legal separation.
Finalising a divorce can be a stressful process, but luckily there is no minimum time requirement for financial settlement between both parties, so it’s never too late to reach out to a family lawyer and discuss your options.
The calculation of property and financial settlement during legal separation or divorce is typically a four step process. Firstly, the total value of the assets, liabilities and financial resources held jointly or individually by both parties is determined. Next the financial and non-financial (such as child care) are assessed. These first two steps are used to establish the financial position of each person and help ensure the division is fair and equitable. The third step involves factoring in future needs. For example, if a couple has children, the property and financial settlement will be adjusted so the costs and care required can be facilitated. The goal of property and financial settlement is making the arrangement as equal as possible, so the final step of the calculation process is making sure both parties are benefitting.
The division of marital assets is approached in the same way as the calculation of property and/or financial settlement. Both parties are entitled to an equal share of assets, liabilities and financial resources, regardless of whether they’re held jointly or individually (see above).