If a couple has decided to separate, there are many issues that need to be discussed and finalised, including the property settlement. The same issues are relevant to both married and de facto couples (including same sex couples) who have separated.
Division of property: assets and liabilities
In determining how assets and liabilities of the relationship are to be dealt with, you need to consider the following:-
- all of the assets (including superannuation) and any money owed on them or other debts;
- the direct financial or other contributions such as renovations or property improvements;
- non-financial contributions such as care of children, household duties or partner support;
- gifts and inheritances;
- future requirements and needs.
No set formula
There is no set formula to determine how property will be shared. Rather, how you agree to handle your financial matters will be based largely on your own unique circumstances. Considering issues, such as those listed above, can help you arrive at a fair and equitable resolution satisfactory to both parties.
A couple may finalise their agreement relating to financial issues by:-
- making a Financial Agreement which is a private and binding Agreement between the parties;
- submitting Consent Orders to the Family Court for approval;
- application for Court orders (where agreement cannot be reached and the court makes orders based on the information before it).
If you and your former partner agree about how property and financial issues are to be dealt with, your agreement can be formalised by way of a binding Financial Agreement.
These Agreements are made under the Family Law Act and provide certainty to the parties without the need to address the court. They can be used in lieu of court proceedings.
If you and your spouse are finding it difficult to come to an agreeable arrangement, then applying to the Court for orders may be inevitable.
Separated couples are able to split superannuation of one party for the benefit of the other. For example, a couple may agree to split super if one partner during the course of the relationship had relinquished their career in order to care for children, maintain the home or support the other partner in their endeavours, and in so doing, lost the opportunity to accumulate superannuation of their own.
If you have agreed for one party to split super in favour of the other, a Superannuation Agreement, Consent Orders or Court Orders can be used to effect the split.
Following separation, application should be made to the Child Support Agency for a child support assessment.
The assessment will specify an amount to be paid from one parent to the other.
A couple may instead choose to implement their own private arrangement. This can be formalised by way of a Child Support Agreement or an application made to the court for Orders.
It is important for separated parents to address and agree on arrangements for parenting, care and wellbeing of any children of the relationship.
Parenting arrangements can be recorded informally in a Parenting Plan. In order to be legally binding, parenting arrangements can be filed as Consent Orders, which if approved by the Family Court, result in the arrangements becoming binding.
If agreement cannot be reached, the parties can apply to the Court for Parenting Orders. Applying to the Court should always be the last resort (although may at times be necessary) – mediation is always preferred to litigation.
Updating your Will
Separated couples should take steps to immediately update their Will to reflect their current circumstances.
Changing ownership of jointly owned property
It is important to update the ownership status of jointly held property. For example, property held by spouse partners as “joint tenants” will automatically pass to the surviving spouse on the death of the other, regardless of whether the relationship has since ended.
Accordingly, it is imperative any joint ownership is recorded as “tenants in common”. This enables a party’s share in jointly owned property to pass to their estate, rather than the surviving owner.
It is common for jointly owned property to be eventually be sold and proceeds divided, or transferred to one of the parties only.
Before these arrangements are made, it would be prudent to change the ownership from “joint tenants” to “tenants in common” so that the parties interests are protected until such time as the property is sold or transferred.
You should contact the Land Titles Office in your state to make arrangements to effect this change – which is as simple as filling in a form. If the property is mortgaged, you should speak to your bank who will usually hold the Certificate of Title, about making changes to update it.
Counselling and mediation
It can be difficult for separated couples to detach emotionally following separation or family breakdown. For some people, this can hinder their efforts to resolve the more practical matters of finances and parenting arrangements . This can have the unintended result of drawing out the process, increasing legal costs or nneding to engage in long court proceedings.
If you are having difficulty either communicating with your ex-partner or coming to terms with the separation within yourself and/or are suffering grief, depression or feelings of anger or despair, counselling and mediation services are available to help get you through this period in your life.