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Working With a Lawyer to Propose Effective Property Settlement Solutions

Working With a Lawyer to Propose Effective Property Settlement Solutions
 Everyone is different and everyone has different ideas about relationships and who they want to spend their lives with.  Some people stay married to one person for their entire life, some people divorce, some people choose not to marry in the first place while others prefer de facto relationships.


Whatever the case is, there is a property settlement solution available to you.  Property settlements can be entered into before you start living with someone, during your relationship and after your relationship has ended.  There are property settlement solutions for all occasions.


Property Settlement After Your Relationship Has Ended

If your relationship has ended, you may be asking yourself, what do I do now?  Many people have complex financial circumstances such as shared land and houses, investment property, joint debts, joint mortgages, cars, boats, shares, joint bank accounts and superannuation.  Some people have family trusts or businesses.


It can be overwhelming to think of all of your assets and liabilities, the contributions you both made to the relationship, parenting issues if you have children and then add the complex property settlements laws on top.  That’s why many people choose to go to an experienced and trusted family lawyer.  A family lawyer will know about property settlement laws and the ways that a property settlement can be completed.


Once your relationship has ended, you only have three choices to carry out a legally binding property settlement.  A legally binding property settlement means that if one party refuses to do what they agreed, they could be taken to Court and forced to do what they agreed to do.  The property settlement options are:

  1. Binding Financial Agreement
  2. Consent Orders
  3. Court Proceedings and Court Orders

A good lawyer will work with their clients and try to keep a property settlement from going to Court.  This is because Court is expensive, it usually creates more conflict and hard feelings between the parties and often the outcome of going to the Court would be the same as if the parties didn’t go to Court and just divided the property between them.  That being said, sometimes Court is necessary to resolve disputes especially where the parties have complex disagreements or a party is refusing to enter into a property settlement.


It is also important to be aware of the time limits that apply to property settlements.  If you miss the time limits you may not be able to divide the property between you and your former partner.  Although you should note, exceptions are still available for people who miss the time limits so even if you miss a time limit speak to your lawyer about your options.


Property Settlement During Your Relationship

Some people may be surprised to learn that you can determine property settlement even after you have commenced your relationship together.  This can be done through a Binding Financial Agreement.  This is usually completed where one or the other person in the relationship brought in property or money, where they will, or are likely to receive inheritance or where the parties have children and the parties want to make sure that if they separate that everything will be taken care of.


A property settlement during a relationship is about trying to create fairness or certainty if separation were to occur. It is not about trying to take advantage of each other or leave the other party with nothing.  It’s important to understand this, as an unfair agreement will be set aside by a Court.  Having a good family lawyer to guide your family through a binding financial agreement is key to maintaining a harmonious relationship and understanding that the agreement is about considering each other’s contributions and looking out for each other’s future well-being.


Binding financial agreements during the relationship can look at who brought property into the relationship and provide that if the relationship were to end, that the party may get that property back, it may provide for spousal maintenance and consider future provisions for each party. For example, if there are children and this has required the mother to stop working and sacrifice their career for the parties’ children.


Property Settlement Before You Start your Relationship

If you are about to marry or you have been dating someone and you are ready to take that next step and move in together, you can enter into a Binding Financial Agreement.  This is also sometimes known as a prenuptial agreement or simply a prenup.  A binding financial agreement can protect the property you are bringing into the relationship and is a fair way to ensure that what you brought into the relationship is what you take out of the relationship.  If you and your partner to be have property you are bringing into the relationship and don’t want the hassle of an expensive property settlement if you separate, you can determine how things will be separated up front.


Binding Financial Agreements

A Binding Financial Agreement is a special type of agreement in Australia which is made under the Family Law Act 1975 and is used for property settlements.  Parties must go through a lawyer for a Binding Financial Agreement because the law requires each party to the Agreement, to have a certificate of independent legal advice.  Without the certificate of independent legal advice from your lawyer, the Binding Financial Agreement will not be valid and will have little or no effect on the property settlement.


Pre-nuptial Agreements

Binding financial agreements must be entered voluntarily. There have been some high-profile cases in recent years that have set a precedent for pre-nuptial agreements, for example. If one partner can prove they entered the binding financial agreement in a state of duress, the court can rule the contract is void. Legal advice is crucial in cases like this to ensure property settlement solutions are fair for both partners who wish to separate or divorce. A binding financial agreement can be made during the relationship – where two people decide how assets they have accumulated during the relationship would be divided in case the relationship doesn’t last. Married couples would have to present financial agreements to their independent lawyers within a year of separation; de facto couples have two years during separation to share this agreement to settle their property and assets.

There are mediation options available to couples who want to dissolve their relationship, whether you are married and seeking divorce or in a de facto relationship and want to legally separate. Family lawyers will encourage you and your ex partner to go through the mediation process to stay out of the courts. Avoiding court is in the best interest of all parties because it can add tremendous stress to an already emotional time. It also avoids the addition of costly court expenses to an already potentially expensive proceeding.


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