Separation and divorce are likely to be among the most challenging experiences you will ever face, both emotionally and financially. And, when it comes to dividing all that you and your ex-partner acquired together — potentially over many years — the challenges, stress and confusion only increase. There are important family and financial considerations to be made, and financial and parenting agreements to be formalised.
In even the most amicable of splits, it is crucial to obtain the services of an excellent family lawyer. If you’ve found yourself wondering, “What am I entitled to in a separation in Australia?”, we warmly invite you to make an appointment to talk with the caring and professional team at Strategic Lawyers Townsville.
How assets are divided in a divorce in Australia
There is no definitive answer on how to split assets after separation. This is true for both married couples and de facto relationships. Under Australian law, each party is entitled to what is “fair”, “just”, or “equitable”. This ensures that neither party is given an unfair advantage or disadvantage in the property settlement, such as in the case of a parent having their ability to earn (and superannuation balance) reduced as a result of being the primary caregiver of any children of the relationship.
Property settlement and family law
Property settlements (also known as financial agreements) are governed by the Family Law Act, and apply to both married and de facto relationships. Prior to making an application, applicants need to show that a genuine effort has been made to resolve the dispute. A lawyer needs to be engaged to negotiate how the property pool will be divided, draft binding Consent Orders, and obtain a court decree of consent.
Although there is no specific formula for the calculation of property settlements and no guaranteed 50/50 or 60/40 split divorce in Australia, the courts have defined a framework to help achieve a fair and equitable division. When it comes to separation and divorce and who gets what in Australia, it generally amounts to the shared property pool, the contributions and needs of each party, and how to fairly implement the division as defined below:
- Shared property pool — This is all of the assets and liabilities of you and your ex-partner. When it comes to the shared property pool, “personal” assets, such as superannuation, are also considered. This ensures a fair and equitable division of all assets.
- Contributions — As well as financial contributions, non-financial contributions such as the care of children and homemaking contributions are considered.
- Needs — Both your’s and your ex-partner’s current and future needs are considered. When it comes to financial division, the most common needs to take into account are your ability to earn (now and in the future), your age and health, and your child-caring responsibilities.
- How to implement the division — Lastly, a just and equitable division needs to be determined, and a decision made on how the division will be implemented.
In court, it is ultimately up to the Judge, who has a wide discretion, to decide who gets what in the property settlement, and no two property settlements are ever the same.
Negotiating an out of court agreement
It is not always necessary to attend court when finalising a property settlement. At Strategic Family Lawyers Townsville, we can negotiate both property and children’s matters outside of court on your behalf. These negotiations deal with the disputed issues, the law’s take on those issues, and proposals for settling the matter. Our negotiations are always professional and strategically focused — where possible, we believe in keeping your case out of the courts.
Agreement is usually undertaken via consent orders. Consent orders are binding agreements that are negotiated on your behalf by us. Consent orders save on both time and money spent in court, along with the stress that can come with protracted court battles.
When negotiating out of court agreements, our highly skilled negotiators always stand by our mission to achieve life-changing outcomes for our clients. We demand high performance in all of our undertakings, and treat our clients as more than just a file number. As a leading family lawyer in Townsville, we are committed to understanding each of our clients’ stories and delivering superior service every time.
Custody of children in divorce settlements
The process of separation and divorce can be made even more challenging and emotional when there are children involved. There are, however, options available to you when it comes to sorting out the custody of your child or children. Coming to an agreement with your ex-partner over living arrangements will prevent the need to go to court.
There are two ways to document any agreement made with your ex-partner — you can choose either a parenting plan or a consent order. There are pros and cons to both of these agreement options, and of course, your children’s best interests should be at the forefront of your decision making in this area.
- A Parenting Plan is a voluntary written agreement between you and your ex-partner and needs to be signed by both parties. It details all aspects of your child’s welfare, care, and development. A parenting plan allows room for flexibility and changes, but is not a legally binding document.
- A Consent Order contains similar information to a Parenting Plan, and also needs to be signed by both parties. However, a consent order is a legally enforceable document, meaning that no changes can be made unless there has been a significant change to circumstances. And any contravention to the Order may result in penalties being imposed.
Contact Strategic Lawyers for your separation and divorce property settlement needs
When it comes time to negotiate your post-separation property settlement, you’ll need a lawyer who has your best interests at heart. At Strategic Lawyers Townsville, you can count on us to get the results you need. Our team of highly experienced professionals are here to deliver a service that is tailored for you and your specific needs. Contact us to set up a meeting with our family lawyers in Townsville today.