My partner and I have separated. How do we divide our assets?

The end of a relationship is a sad and stressful time.

On top of dealing with the emotional fallout, couples often have to go through the difficult task of divvying up their assets.

There are several steps involved in this process and it is important that you consult an experienced family lawyer.

Can I apply for a property settlement?

The rules are different for married couples and de factos.  While, if you are married, you can apply to the Court for a property settlement, the Court must consider whether it is “just and equitable” for an order to be made.

The same applies to de facto couples, however,  if you were in a de facto relationship you must meet one of the following conditions in order to be eligible to make an application for a property settlement:

• You lived together as a de facto couple for at least two years; or
• You have a child together; or
• You or your former partner made substantial contributions (financial or otherwise) during the relationship.

How does a Court determine what I am entitled to?

There are steps that the Court must traverse when determining what property settlement order, if any, should be made.

They are:

1. Considering whether it is ‘just and equitable’ for a property adjustment order to be made.
2. Determining the pool for division. The assets and liabilities of the parties, including any financial resources, must be identified and valued.
3. Considering the contributions of each party, including both financial and non-financial contributions.
4. Assessing other factors that may require a further adjustment in favour of either party. There are several matters that must be considered by the court when determining whether to make a further adjustment in favour of either party, including:

• The effect of any proposed orders on the earning capacity of either party
• The age and state of health of the parties
• The care arrangements for any children of the relationship
• The duration of the relationship and the extent to which it has affected the earning capacity of the relevant party
• Whether either party is cohabitating with another person.

5. Whether the proposed outcome is ‘just and equitable’. There’s that phrase again!

While these steps may appear to be quite straightforward, there are several matters that can prevent a property settlement from being resolved in a timely and cost-effective way.

It is imperative that:

• Full and frank financial disclosure of your financial affairs is provided in a timely fashion.
• Where necessary, experts are engaged to value assets and provide advice about the potential taxation ramifications of any proposed property settlement arrangement.
• A genuine attempt is made to resolve the matter. If no resolution can be reached, consideration should be given to engaging in a formal dispute resolution process, such as mediation or arbitration
• Consideration be given to instituting legal proceedings.

Bell Dore Lawyers’ experienced family law team, led by Adrian Dore, can help you through each stage of your separation and the property settlement process.