Separation and Financial Matters
After you have separated, often there is a need to separate your property and finances so you can both move on financially independent of each other. We call this a property settlement.
We can help with practical advice for separation and help you with where you stand financially. We can connect you with financial advisers, mortgage brokers and accountants to make sure everything is covered.
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If you are a bit lost with how it all works - i.e. what is included, whether things need to be sold, or can they be refinanced, what cash payment is needed, whether a super split needs to happen - we can help demystify everything in an easy to understand way.
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If there is real estate that needs to be refinanced, we can help you calculate possible figures of what you may need to pay out the other person as well as put you in contact with mortgage brokers
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Have an agreement already? We can help document that agreement to make sure it is legally binding and enforceable for peace of mind. We also ensure any agreement reached after either negotiations or a mediation is also properly documented for you.
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Do you own real estate together or is it needing to be transferred? We can help with that AND ensure you receive a stamp duty exemption and a CGT roll over relief (if an investment).
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We can assist with negotiating (i.e. talking) with your former partner or their solicitor if they have one. We have found that getting a matter ready for a mediation (a half or full day where you get to sit down and discuss matters there and then without the delays of sending and receiving email) is far more cost effective and quicker than dragged out negotiations that can quickly get off track and blow out costs.
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If you are in Court - at any stage - we can help. With over 20 years experience in matters, we can easily pick up a matter at any stage, assess the material of where you are at and help with the further evidence needed to assist in getting realistic outcomes through the Court systems.
We can help with :
Family Law is discretionary – i.e. it is up to the Judge on the day with the facts that they have to make a decision. This is also why solicitors will always give you a range and that range is often 5% or 10% in difference. We call that the range of where you might be able to settle your matter.
It is also why every property settlement is different - because every relationship is different and the contributions and future need factors are different and different weight is given and therefore different ranges are given.
Things to keep in mind
There is a 5 step process for a Court to determine what is legally (not morally) fair when dividing assets.
Let’s go through those steps.
So, how is it all worked out?
Step 1.
The Court must first consider whether it is just and equitable to make an order i.e. should there even be an alteration of property interests.
This step is usually answered in the affirmative. However there are a handful of matters where the answer may be no.
Step 2.
What property is available.
This includes everything that you both own – both together and individually – as well as anything you have an interest in. It includes things such as real estate, motor vehicles, boats, motorcycles, bank accounts, businesses, shares, mortgages, loans, tax debts, loans to third parties and superannuation just to name a few.
And it does not matter whether you will be splitting it i.e. people always say “but we agreed I wouldn’t touch it”. But it still needs to go into this first step – you both need to be able to make a fully informed decision.
Something to think about: watch out for valuing superannuation. If it is a defined benefit fund, then there is a specific way that it needs to be valued. Usually the statement value is not its true value.
Step 3.
What and how have you each contributed.
This stage looks at what you each bought into the relationship, and how you contributed during the relationship financially and non-financially, directly and indirectly, as well as contributions as a homemaker and or parent.
For example – if you are an electrician and you rewired the entire house. Then your labour is a direct non-financial contribution.
Something to think about: The Court considers the one earning the money just as important/significant as the person who stayed at home and looked after the children. One has not contributed more than the other.
Step 4.
What are your ‘future needs’.
This stage looks into the future and looks at such things as your ages, health, income earning disparity, care of children under the age of 18 and the duration of the relationship.
If one person is worse off than the other, then that person may get an adjustment in their favour to help them bounce back quicker.
Let’s take for example an analogy of super. If someone is earning $100,000 per annum they will be able to put away just under $10,000 per year in super. Now if the other person is only earning $30,000 per annum they will only be able to put away just under $3,000 per year in super. It may be that the person on the lower income may receive an adjustment (or a bit more out of the property settlement) because of that income earning disparity.
Step 5.
Looking at the end result and considering if it is legally fair.
Note the word legally fair. Not morally fair. This step essentially looks over the other 3 steps and looks at the end result and converts the % into $ to see what the end result looks like.
We will usually draw a line down the page, with your name on one side and your former partner’s name on the other side and start to divvy up the assets, liabilities and superannuation from Step 2 to see what the outcome converts to.