What to do when I separate with a property settlement

Have you recently separated from your spouse and wonder what do I do now in relation to my property separation or property settlement? Do I need to have a Lawyer?

Here are some frequently asked questions that separated spouses ask when they first decide to leave their partners:

Who gets what property?

The Family Law Act provides a guide on what considerations are taken into account when dividing assets upon separation. These include financial contributions of the parties, non-financial contributions and future needs of the parties. For example, if you will have full time care, or at least predominantly the majority care of your 3 children and that will affect your ability to work full time in the future, a greater share may be apportioned to you as you have greater future needs.

Does the length of the marriage matter to divide property?

It may, as in a short marriage, or rather short cohabitation period, the division of assets may be treated differently to a longer relationship. For example, if you already own a home, albeit with a small mortgage, and your partner has many debts at the start of the relationship, and you are only married for say 2 years, a 50/50% division of assets would not be fair and just. You would be considering taking out of the marriage what you put into it.

Can I waive stamp duty when we transfer the property from one spouse to another?

Yes. So long as you have a properly drafted Binding Financial Agreement recognised under the Family Law Act or Orders from the Family Court, whether by consent and agreement or as made by the Court. It is important that specific clauses are included when drafting the documents and that independant legal advice has been sought and the Certificates attached.

Do I need Court Orders or a Binding Financial Agreement?

We always recommend to properly finalise your property settlement to prevent future claims. Once you have obtained a Divorce, you have 2 years under the Family Law Act to ensure your property settlement is finalised, or you may risk not being able to make an application to the court to have the matter dealt with. If you fail to properly finalise your property settlement, your spouse may come back to you demanding more of the asset pool or some of your newly acquired assets. It is very important to finalise a property settlement for such reasons.

Do I need a Solicitor for a property settlement?

There are many considerations when determining a fair and just division of property upon separation and we strongly suggest you consult with a Family Law Lawyer to make enquiries as to what to expect throughout the separation and what to do about your property settlement. To waive stamp duty on the transfer of your home from one spouse to another, for example, can only occur if you ensure correct and necessary clauses are included in your separation documents. Call us on 4677 2022 and speak with one of our family law lawyers who can provide over the phone advice or come in for a chat with one our lawyers specialising in family law in our Picton office.

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