Marriage/DeFacto property & financial rights, when a relationship breaks down, must be dealt with as soon as possible, to provide closure and to minimise anxiety, stress and costs.
Understanding the processes that you need to undertake and the risks of not putting a property settlement agreement immediately in place can seriously undermine any future positions you think you may have.
If you have managed to reach a property settlement agreement, you must document it.
Not doing so, can expose you to unnecessary risk of having any verbal agreements ignored or challenged as circumstances change.
Discussing your position with an accredited family law specialist will assist you in protecting your future.
Through knowledge and experience, Calvin Nelson has a four step process in assessing a marriage or de facto relationship property/financial settlement.
This process aligned with property orders that a court may impose, following a stressful and costly hearing.
Our objective is that you come to an appropriate and amicable arrangement without having to go through the difficulties and agonies of the court process.
All assets must be taken into account, whether they are acquired before or during or after the separation.
Assets include real estate, shares, cars, jewellery, savings, furniture and effects.
Superannuation is taken into account, and it may be splitto the other person's fund.
We assess each party’s contribution to the relationship:
We assess the future needs of both parties, having regard to factors which include:
The final step is the practical effect, to achieve a result which is fair and reasonable.
When you reach an agreement, there are two ways of formalising the agreement:
If you are thinking of not documenting your property settlement in a legally binding way you are leaving yourself open to substantial risks.
It is a common situation – you’ve managed to reach agreement on how you’re going to divide your assets, you’re happy with it, the other party is happy, you don’t want to rock the boat, you don’t want to upset the other party and you want to keep it amicable, say for the sake of the children.
Sorry but things change. People regret decisions. Greed and envy drive the termination of verbal agreements.
Any one of these things, could have you facing a situation where your (ex)partner decides later to change your “informal” verbal property settlement agreement.
People on the friendliest of terms will still look after themselves first. If they think their financial circumstances need it and they know the property settlement agreement reached is not legally binding, then they may want more later.
The best time to get your former partner to agree to make the property settlement you have reached final, binding and enforceable, is when you:
If you both are prepared to make the property settlement you have agreed to final, then it should be easy to get your agreement into either Consent Orders or a Binding Financial Agreement.
If your former spouse doesn’t want to have Consent Orders or a Binding Financial Agreement, then you may want to ask why not – are they hiding something or hedging their bets to keep options open for the future.
If you reach agreement but want to keep things informal (without Consent Orders or a Binding Financial Agreement), you can be taking a big risk.
If you agree, why not put it in writing and have it legally enforceable.
Ensure that there will never be any misunderstanding or attempt by one person to change an agreement if their circumstances change.
Court Consent Orders are stronger than a Binding Financial Agreement, as the Court must be satisfied that the outcome is fair and reasonable.
A Binding Financial Agreement, does not need to be fair and reasonable.
It would be nice to be able to rely on your former spouse’s word, but you are no longer together and the only thing you can have complete trust in, in relation to something as serious as your property and financial future, is a Court Order.
You must also remember that if your property settlement agreement is not legally documented you will not be able to:
For a no obligation and confidential discussion, receiving the benefit of our knowledge and experience, please contact Calvin Nelson at any one of our offices in Auburn, Ermington or Pennant Hills.
Expert Advice from our Legal Specialists
In a marriage or a de facto relationship breakdown, there are some fundamental actions that should be undertaken immediately - understand these steps.
Having a Binding Financial Agreement (pre-nup) provides advantages, a way forward for both parties in the event of a marriage or de facto relationship breakdown.
Prior to visiting a family law specialist you should prepare a list of the questions that you need to have answered. This will ensure important things are not missed.
Our Law Society Accredited Specialists' objective is to achieve an expedient settlement, avoiding the complexities, delays, costs and anxiety of going to Court.