24 April 2021

7 important things to consider when negotiating your property settlement



To negotiate a property settlement, you should seek advice from a family lawyer, so you are aware of your entitlements.
Australia Family and Matrimonial
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ONE: Do you know what all of your assets and debts are? It is important that you are aware of all assets and liabilities, as well as your spouse's assets and debts, including superannuation entitlements, to give you a clear picture of the net asset pool that needs to be divided.

TWO: If you don't have all of that information can you obtain it by financial disclosure and when is it time to start court proceedings to issue subpoenas? While some couples are able to exchange full financial disclosure by sending letters between their respective lawyers, some parties are not cooperative with that process, or are not forthcoming with their disclosure.

You may wish to commence proceedings in court, as the court will then make orders for financial disclosure to be exchanged. If your former partner still does not comply with those orders, you might then consider issuing subpoenas to various organisations such as banks and financial institutions. As there are costs involved in the court process and issuing subpoenas, it is often quicker and cheaper to provide full and frank financial disclosure from the outset.

THREE: Do you want to keep the house – can you afford to keep it? If you wish to keep the house, you may wish to approach your bank to query your capacity to either take out a mortgage to pay out your spouse's interest in the home, or your capacity to take over the current mortgage and extend it to make that payment. Any payment to your spouse will depend on the other assets that are to be divided and the percentage division of the asset pool.

FOUR: What percentage of the property pool are you entitled to? Your lawyer will assist you to consider the contributions of both you and your spouse throughout the marriage and your current circumstances. We can advise you as to the range of the percentage you may be entitled to receive from the asset pool.

FIVE: Will you get recognition for the inheritance you have received? This will depend on whether your inheritance was received during the marriage and utilised by both you and your spouse, or whether it was received after the separation. This is a particularly tricky area of family law and will depend highly on the circumstances of each case.

SIX: What about properties you owned prior to the commencement of the marriage? Any contributions at the commencement of the marriage are always considered, but they will be considered against other contributions during the marriage and the length of the marriage. In longer marriages, the importance of the initial contributions may have less impact on the final division of the asset pool.

SEVEN: If you have children, where will they be living after the separation and what are the arrangements? A factor that may influence the percentage division of the assets is which party has the primary care of the child. For example, in circumstances where one party has 70% care of the child, they may be entitled to receive a higher portion of the asset pool to account for the financial burden of parenting the children on a primary basis.

If you are in the process of negotiating a property settlement, we recommend you seek advice from an experienced family lawyer to ensure you are aware of your entitlements and to help your settlement move along quickly and smoothly. Contact our office to arrange a fixed fee consultation.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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