Q What is a property settlement agreement?
A An agreement outlining the division of the property between a husband and wife after separation (different rules apply to defacto relationships). Such agreements generally cover a wide range of “property” such as real estate, investments, cars, boats, companies and trusts and in some cases, superannuation. It does not matter whose name the property is in.
Q What factors can I take into account when determining what my entitlement will be in such an agreement?
A Generally the lawyer assisting you, in being guided by what is fair and reasonable in your circumstances, will take into account:
- The contributions you have made to the family as a parent or homemaker (ie non-financial contributions), financial contributions you have made and any contributions you have made to improve the home, either direct or indirect.
- The future needs of you, your children and your ex-partner, depending on those parties’ age, health, income, a reasonable standard of living, eligibility for pension, etc.
- The length of the marriage and earning ability may also be a consideration.
Q We have basically agreed as to how we will split the property. Do we still need a formal agreement?
A Yes, it is best to have a formal agreement in place so that you can enforce the agreement if necessary. An agreement can be registered with the Family Court, which then makes it legally binding on both parties. Under section 87A of the Family Law Act, an agreement may be drawn up and signed by both parties, which is then filed with the court. Both parties must then convince the court that such an agreement should be approved. Such an agreement will usually be approved once the court is satisfied that the agreement is fair and that there has been no fraud or undue influence involved.
Another type of agreement is made by way of an application to the court for what is known as “consent orders”. These are filed along with the Marriage Certificate. They can deal with quite broad issues, including the paying of maintenance, where the children will live, etc. If these orders appear to be fair and reasonable, the Registrar of the court is able to sign and seal them. Such orders are then final.
Q Is there stamp duty payable on the transfer of property dealt with in the agreement?
A No – such transfers are exempt under the Family Law Act.
Q What happens if we can’t agree to a property settlement?
A If there is no chance that you can reach a property settlement agreement, you are able to commence proceedings in the Family Court. At the directions hearing (usually about 3 months after you have instituted proceedings), the Court will inquire as to whether there has been any agreement reached in that time to settle the matter of property division. If not, the parties will have to provide details as to the value of assets, bank account details, etc and the court will also order the parties to attend a conference with a Registrar of the Family Court to attempt to negotiate a settlement.
This is generally a much more expensive, stressful and time-consuming way of dealing with the family assets, which is why settlement by agreement is encouraged.
Q Is there are time-limit placed on when I can apply to the court for a property settlement?
A You should typically make an application for property settlement within 12 months of your divorce, as after that time, you will have to convince the court that you will suffer hardship if you are not allowed to apply.
Q I’m worried that my partner will try and dispose of or interfere with our assets before we have properly dealt with them by way of agreement. What can I do?
A You can apply to the court for an injunction to prevent the property from being dealt with, apply to freeze the bank accounts of your ex-partner, sever a joint tenancy and/or lodge a caveat over the property to prevent its sale.
Q In what circumstances might I eligible for spousal maintenance?
A Spousal maintenance is money paid to you, independent of any money owed by your ex-partner in respect of child maintenance and is usually a lump sum paid to the spouse in need from the pool of matrimonial assets. An application for spousal maintenance should be made within 12 months of the divorce being finalised, or an extension of time will have to be given by the court.
You will need to show that you are unable to adequately support yourself in order to be eligible and this right is by no means automatic.