Property and Financial Settlement following separationor divorce
If you and your spouse or partner (including same-sexpartners) have separated, you will no doubt be wondering how you will divide upyour property and other financial assets.
In this article, we talk about your first meeting withyour solicitor and what information to bring along to that meeting, as well aslooking at going to court versus settling out of court. We also discusthe four step process that the court will follow when it determines how yourproperty and financial matters will be settled. These same steps willalso apply if you are attempting to reach an agreement out of court.
Property and financial matters can be settledimmediately upon separation, so couples who are married do not need to waituntil they are divorced.However, if you and your spouse have already divorced,and have not yet been able to come to an agreement about how your property andfinancial matters should be settled, you must issue Court proceedings within 12months of the date of your divorce. For de factorelationships, the time limit in which you must issueCourt proceedings is two years from the date of separation.
Regardless of whether your separation/divorce isamicable, it is considered a conflict of interest for the same law firm to actfor both you and your former spouse/partner, so you will each need to obtainyour own independent legal advice.
You and your former spouse/partner may have alreadycome to an agreement about how you wish to deal with your property andfinancial assets, and may simply require legal advice about the terms of theagreement and how you may go about formalising it so that it is legally bindingand enforceable.
Conversely, there may be factors such as violence orhostility which mean that it is difficult or inappropriate for you tocommunicate directly with your former spouse/partner about negotiating a property settlement.
Your solicitor can discuss with you the best approachin both of these situations.
－ What will happen at the firstmeeting with your solicitor
When you firstmeet with a solicitor about settling your property and financial matters, youwill be asked a number of questions about yourself, your former spouse/partnerand your relationship. You will also be asked questions about the financialcircumstances at the beginning of the relationship and during the relationship,as well as your current financial circumstances. It will help if you canprovide as much detail as possible.
Your solicitor will ask you about 你的律师将提出以下方面的问题:
• joint and individual assets and liabilities; 联名和个人资产和负债;
• superannuation entitlements 养老津贴;
• your employment and income 就业和收入;
• any business or company interests 任何业务或公司利息;
• whether any assets are held by a trust 任何信托资产;
• your bank accounts (including credit cards) 你的银行账户(包括信用卡);
• any other relevant financial matters 任何其他相关财务事项
Based on the information you provide, your solicitorwill be able to give you advice about the likely range of outcomes in yourcircumstances. They will discuss with you the principles of law that areapplied in determining how your assets will be settled (see “the four stepprocess” below) as well as the process involved in reaching a settlement orgoing to Court.
Your solicitor will also discuss the issues of spousalmaintenance and child support with you.
－What should you bring to yourfirst meeting with your solicitor?
Chronology of relevant dates相关的日期
Before you meet with your solicitor, it will behelpful to prepare a chronology of relevant dates, including:
• the date you started living together; 开始同居的日期
• the date you were married (if applicable); 结婚日期(如果有的话);
• the date you separated;分开日期
• the dates of birth of any children; 任何孩子的出生日期
• the date of purchase or sale of assets; and 购买或出售资产的日期；
• an employment and income history. 就业和收入的情况（合约和工资单）
If you do not know exact dates, try and estimate theapproximate month or even year.
－Values of assets and liabilities 资产和负债的价值
Where possible, you should try to estimate theapproximate values of each of your assets (such as properties, cars,businesses, shares and bank accounts). If you have obtained appraisals orvaluations of any assets, these should be provided to your solicitor. Youshould also find out the current balance of any of your liabilities, such asmortgages or credit card debts, and bring the statements with you.
If you and your former spouse/partner disagree aboutthe value of an asset or if the value is not known, it may be necessary toobtain independent or certified valuations.
－Copies of relevant certificates, agreements or Orders 相关证书,协议或命令的复印件
If you were married, you will need to bring a copy ofthe Marriage Certificate and, if relevant, your Divorce Order.
If there are any existing Orders or Agreements inplace between you and your former spouse/partner, these will also needto be provided.
－Other relevant documentation 其他相关文件
It is important to provide your solicitor with as muchdocumentation as possible in relation to your current financial circumstancesand your financial history, including bank statements, superannuationstatements, trust deeds, individual and business tax returns and businessfinancial statements.
It is compulsory that both parties exchange allrelevant financial documents before reaching any final property settlement.This enables both solicitors to gain a full understanding of each party’sfinancial circumstances and to compile an accurate list of the assets andliabilities.
－ Going to court versus settlingout of court法院审理 VS 庭外解决
Your solicitor will discuss with you the best courseof action, which will either involve settling out of courtor issuing proceedings and going through the court process.
1) Settling out of court庭外解决
Once all relevant financial documents and valuationshave been obtained and exchanged, negotiations can commence as to how yourassets and liabilities are to be divided between you. This can be achieved bysuch methods as:
• putting an offer in writing 文字形式草拟意向;
• a round table conference; or一个圆桌会议;或
• mediation 中介调解
At a round table conference, both parties and theirlawyers meet to try and settle your matter.
Mediation, as the name suggests, involves a mediatorwho is usually an experienced family lawyer. The mediator will act as a neutraland independent person to try and help the parties come to a resolution.
If an agreement is reached, your solicitor willformalise the agreement in writing so that it is binding and enforceable.
2） Issuing proceedings and court process 提出诉讼和法院流程
If you and your former spouse/partner are unable tocome to an agreement after making attempts to settle out of court, it may benecessary to issue proceedings at the Family Court of Australia (or theFederal Circuit Court).
This involves your solicitor preparing an Application(setting out the outcome that you are seeking) and a Financial Statement (whichsets out your current financial circumstances). An Affidavit may also need tobe filed, which sets out in written form, your version of events and yourevidence in support of your claim. Once the Application has been filed, thecourt will list your matter for a Case Assessment Conference before a Registrarin the Family Court or a Directions Hearing in the Federal Circuit Court.
The Case Assessment Conference provides an opportunityto settle your matter before it proceeds any further. If the matter cannot beresolved at this stage, you will then be required to attend a ConciliationConference before a Registrar and this presents a further opportunity toresolve your matter before it is listed for a final hearing.
At the final hearing, your matter will be heard beforea Judge (or Federal Magistrate) who, at the conclusion of hearing the evidenceand submissions of both the parties, will make a determination of the matterand make the Orders considered appropriate within the guidelines of the FamilyLaw Act.
在最后的听证会上,双方的问题将被听审, 在法官(或联邦法官) － 这个人会最后听审双方供词和提交的材料，然后根据家庭法律的条款做出最后的判决和命令。
－ The Court adopts a five stepprocess5个步骤
The Court adopts a five stepprocess in determining how your property and financial matters will be settled.These steps are also applied in attempting to reach an agreement out of court.
The steps are 这些步骤是：
1. Consideration of whether aproperty settlement is necessary
The first important consideration for the Court is todetermine whether or not it is actually necessary to proceed with a propertysettlement.
• In the vast majority of cases,the Court will decide that it is just and equitable for there to be a propertysettlement or a change in the ownership of a property. However, in somecases, the Court will decide that each party should simply keep what theypresently own.
This may be because 这个可能因为：
• the parties have decided to keep their financialaffairs and arrangements totally separate throughout the relationship;
• the relationship was of a very short duration; or 双方关系时间甚短
• the parties separated many years ago and haveorganised their affairs on the basis of an informal agreement since that time. 双方在很多年前已经分居，自那时开始双方根据一个非正式的协议自行管理各自的事物。
2. Identify and value the assetsand liabilities
This involves compiling a list of all assets andliabilities (including superannuation) that are in the individual and/or jointnames of you and your former spouse/partner, and attributing a value to them.
Values can be approximate or may be determined by wayof a formal valuation, as they should be as accurate as possible. The resultshould be a table of assets and liabilities which your solicitors will use to determinethe value of the total asset pool to be divided.
It is also standard practice to establish what theasset pool was when you first started living together (which may have occurredprior to marriage) to work out any increase in asset values and to establishwhat each party brought into the relationship (referred to as initialcontributions).
3. Assess contributions评估贡献
Once an asset pool has been established, yoursolicitor will ask questions about each party’s contributions to the assetpool.
Contributions can be 贡献可能是:
• financial (such as by way of income, mortgage paymentsor inheritances)
• non-financial (such as labour to undertakerenovations); or
• by way of being a homemaker and parent.
Contributions are usually calculated as a notionalpercentage, such as 50/50 or 60/40.
4. Assess “future needs” 评估“未来需求”
Once contributions have been assessed, your solicitors(or the court) will consider what are referred to as the “future needs” of bothparties. These include
• the age and health of the parties; 双方的年龄和健康;
• the earning capacity of the parties; 双方的挣钱能力;
• whether one party will have the care of youngchildren; 一方是否照顾年幼的孩子
• the duration of the marriage or relationship; and 婚姻或关系的持续时间
• any other relevant consideration 其他相关因素的考虑
The assessment of future needs will impact thenotional percentage reached in Step 2, so that the percentage split of theasset pool may increase or decrease in favour of one or other of the parties totake into account any relevant future needs factors.
5. Is the division of assets just and equitable?
Taking each of the previous steps into account, your solicitors,or the court, will then consider whether the final division of assets asproposed by the parties is just and equitable in all of the circumstances. Thismay involve assessing the practical effect of any proposed division of theasset pool.
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