Property settlement in Perth occurs when a divorced couple decides to divide everything they own (and finances) among themselves. However, the whole process is not simple since property settlement involves many legal steps. If both parties agree on how to divide what they own and their finances, they may draft consent orders in the Family Court of Western Australia.
Using legal documents like binding financial agreements or prenuptial agreements is another way for couples to agree on their asset division. Basically, these agreements allow couples to make asset and financial divisions before the breakdown of their relationship.
Couples may also use a binding financial agreement while in a de facto relationship or before marriage. Another agreement that couples may use is consent orders.
Consent orders are written agreements between two parties that require family law court approval. The family law court reviews consent orders and turns them into final orders. However, if both parties fail to agree, they may need to attend a court hearing with their own lawyers. The judge at the hearing will then decide the appropriate property settlement procedure for the disputed parties and draft final orders.
People are entitled to a property settlement if they were married or were in a de facto relationship. De facto couples are couples who are living on a genuine domestic basis but are not married. Married couples can apply for property settlement within 12 months of a divorce. While de facto couples can do so within 2 years after their separation. This article will discuss why it’s important to seek advice from property settlement lawyers.
Property Settlement in Perth, Western Australia: Assets to Include
Indeed, divorce can be difficult and emotional for separating couples. Hence, they may act rashly and just make a simple list of what to divide during their property settlement. This not only makes more disputes in property settlement proceedings but also lengthens the entire procedure. Here are some common assets to include when divorcing couples divide their assets and finances:
- The marital home
- Any homes with investments
- Superannuation
- Any cash in personal bank accounts or joint bank accounts
- Shares or interests in businesses or companies
- Any vehicles (Cars, boats, motorcycles, etc.)
- Mortgages
- Personal loans and credit cards
- Any outstanding debts such as school fees of the divorced couple’s children
- Tax liabilities
All of these are what’s commonly added during property settlement in Perth. Divorcing couples must ensure that every asset is divided in a just and equitable manner. However, some couples fail to reach an agreement on dividing these assets. Hence, they go to court and let the judge decide what is just and equitable.
Property Settlements in Perth: The Process
1. Determining the Couple’s Asset Pool
An asset pool includes all assets, liabilities and financial resources that a couple owns jointly and/or solely. Contrary to popular belief, an asset pool is not established at the moment of a couple’s separation.
An asset pool is only established when couples finalise their property settlement or when the family court decides on property settlements on a final basis.
2. Calculating Contributions to the Relationship/Marriage
Most people may assume that contribution to the relationship/marriage only includes financial contributions. However, this is not the case when going through the property settlement phase in Perth. The family court will also consider the non-financial contributions of each party to the relationship/marriage. Below is an example of financial and non-financial contributions.
Financial Contributions
- Buying furniture
- Making efficient home improvements
- House maintenance and repairs
- House expansion
- Acting as the primary caretaker for children under 18
- Maintaining/Improving out of goodwill or for free
- Doing accounting for a business
Non-financial contributions:
- Acting as the primary caretaker for the children under 18
- Maintaining/Improving out of goodwill or for free
- Doing accounting for a business
It’s difficult to assess how much financial or non-financial contribution each couple made. Every relationship is unique and courts will need sound evidence of any contributions the couple made. Hence, it’s important for couples to account for their contributions and get as many witnesses and as much evidence as possible during the property settlement process.
3. Determining Each Party’s Future Needs
It’s important to determine each party’s future needs during divorce proceedings. This ensures that after the divorce, each couple is able to maintain a standard way of living. Hence, this may require necessary adjustments for some couples. When determining future needs, family law courts will consider the following:
- Age of each couple
- Mental and physical health of each couple
- The couple’s individual income and earning capacity
- If either party is the primary caretaker of a child/children under 18
- The duration of the relationship
- If the relationship prevented the other party from securing a stable financial income
4. Determining What Is Just And Equitable
What a divorced partner thinks is just and equitable is fair to them or the other party. There is a long list of factors that the Family Law Act 1975 considers when dealing with property settlement in Perth. These factors are outlined in Section 79 of the Family Law Act which is the couple’s:
- Age
- Health
- Earning capacity
- Care of children
- Financial resources
- Standard of living
- Other partners (if any)
- Other dependents and future dependents (if any)
5. Whether Spousal Maintenance Is Necessary
Spousal maintenance is a form of financial aid that a higher-earning partner provides to his/her ex-spouse. This form of payment will assist lower-earning partners to reach a reasonable standard of living even after divorce proceedings. Parties are eligible for spousal maintenance if they:
- Are mentally and physically incapacitated
- Have no other means of gaining income or improving their earning potential
- Have no means of gaining financial resources
- Are too old to work
What Happens to the Marital Home?
The family court will take into account not just the marital home, but all property that either the spouse owns or controls. This includes all property owned or controlled during, before, or after the relationship or marriage. There are times when a divorced partner gave his/her property as a “contribution” to the relationship/marriage.
If this is the case, the family court will consider this a big factor in the property settlement phase in Perth. A partner may also file an exclusive occupancy order if they want sole rights over the marital home after a divorce. Moreover, there are many factors that can affect the division of the marital home and other properties:
- Whether the original property or marital home still exists
- If there are any financial and non-financial contributions to the property.
- The length of the relationship
For instance, what if the divorced couple’s relationship was short and the other party did not make any contributions to a property? This results in the court possibly giving a lot of weight to the value of a partner’s initial contribution. Alternatively, the court might “quarantine” the property entirely to prevent its division.
Seeking Professional Legal Advice From Property Settlement Lawyers
JB Solicitors is a family law firm that provides professional service in all kinds of family law matters like property settlement.
Our lawyers understand that divorce is a difficult time for separating couples especially if there are children. Moreover, some couples may think that they won’t receive a just and equitable division during property settlement.
Whether it’s in Western Australia or any other state in Australia, our experienced team of family lawyers can provide clients with the best legal advice regarding property settlement.
Couples may also avail our mediation and arbitration services if they want stress-free and out-of-court agreements. These services can assist clients to reach an agreement about asset division and even parenting arrangements for children.
Contact our team of property settlement lawyers today for legal service today.
