Matrimonial property settlement lawyers.
If you're going through a separation or divorce, navigating the division of assets and financial matters can be overwhelming. Our compassionate and experienced team of family lawyers in Adelaide and regional South Australia are here to provide clear, practical advice to help you achieve a fair and just property settlement.
We understand that the financial aspects of separation are complex and emotionally challenging. You don’t have to face this process alone.
Our team will guide you through every step of the matrimonial property settlement process, ensuring that you understand your rights and obligations, whether you're negotiating a settlement or seeking a Court order. We’ll assist with identifying and valuing your assets, evaluating contributions from both parties, and considering the future needs of everyone involved.
With our expertise, we’ll help you navigate the legal complexities of property division and ensure that any agreement reached is fair, reasonable, and legally binding. Let us support you in achieving a resolution that provides clarity and peace of mind as you move forward.
How we help you work out your matrimonial property settlement
We'll help guide you through each step of the matrimonial property settlement process, which typically involves:
First, we'll assess if it's "just and equitable" to make an adjustment of property.
Next, we'll help you work out the net asset pool available for division. This is done by identifying and giving values to all assets, liabilities, and superannuation interests – whether owned jointly or individually.
Then, we'll identify the contributions you've both made and give them weight. Contributions from the start of the relationship, during it, and in the period post-separation are considered. Those contributions can include financial contributions (i.e: taxable earnings, gifts, inheritances, and/or lump sum payments) as well as non-financial contributions (i.e: contributions made in the capacity of homemaker and/or parent as well as labour carried out and skills applied in the renovation and/or maintenance of property).
We'll also consider the future needs of each person and give those weight. For marriages, we carefully consider the factors listed in Section 75(2) of the Family Law Act (1975). Those factors include, amongst other things, considerations about age, health, income, capacity for work, and care of children of the relationship.
Finally, we'll ensure that the overall division (of assets in favour of each person) is just and equitable in all the circumstances of the relationship. The weighting given for contributions and future needs is usually expressed as a percentage and that percentage is used to calculate the division of the net assets of the marriage.
Frequently asked questions about matrimonial property settlements
Is there a time limit?
A matrimonial property settlement can be negotiated or resolved by going to Court before you get divorced.
But, once you are formally divorced, you must resolve your property settlement (by agreement or by going to Court) within 12 months of the date on which your Divorce Order became final.
How do we reach an agreement?
The main pathways to reaching a matrimonial property settlement are:
- Direct discussions between people resulting in a private, negotiated agreement;
- Reaching a negotiated agreement through the use of Family Dispute Resolution, a mediation service, and/or lawyers; or
- Using the resources of the Courts to come to negotiated agreement or to receive a decision.
It’s important that you know that there are pre-action procedures for property settlement matters that are designed to help people resolve property settlement disputes without going to Court. We can help you to navigate and comply with those procedures.
What happens if we reach an agreement?
We recommend formalising any agreement reached to provide clarity about its terms. That tends to improve the chances of the agreement being observed and carried into effect.
There are two ways to make an agreement reached about property settlement issues legally binding:
- By completing an Application for Consent Orders and a Minute of Order (“a consent Order”); or
- By entering into a Financial Agreement.
When an agreement is properly recorded in a consent Order or in a Financial Agreement, it will be legally binding and enforceable.
That means, if a party does not comply with one or more of the terms of settlement, the other party will have access to specific legal remedies to enforce the terms of settlement.
What is a consent Order?
It is an Order made by the Federal Circuit and Family Court of Australia that records an agreed division of assets, liabilities and superannuation interests.
The Order is signed by both parties and filed electronically with the Court together with an Application for Consent Orders. As both parties consent to the terms of the Order, neither has to attend Court to have the Order made.
The Court Registrar must be satisfied that the terms of the Order are “just and equitable”. The Registrar will then sign, stamp and date the Order. If the Court Registrar is not satisfied that the terms of the Order are just and equitable (or they consider it suffers from technical errors), they have the discretion to issue a requisition.
What is a Financial Agreement?
It is a written Agreement that must comply with very specific drafting and advice requirements (prescribed by the Family Law Act 1975).
A Financial Agreement:
- Records an agreed division of assets, liabilities and superannuation interests;
- Excludes the Court from otherwise determining an appropriate division of the assets; and
- Excludes the rights and entitlements that each party might have otherwise had to a property settlement under the Act.
The Agreement is not subject to review by the Courts and, so, it is possible that its terms may not be fair to both of the parties.
What is the right way to document my agreement?
An experienced family lawyer will be able to determine whether a consent Order or a Financial Agreement would be best suited for your situation by identifying and taking into account your personal circumstances, terms of settlement, and overall objectives.
What happens if we can’t reach an agreement?
If you are unable to reach an agreement about how to divide the net assets of your marriage, it is likely that you will need to make an Application to the Court for property settlement Orders.
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