HOW IS PROPERTY DIVIDED in a divorce?
There is no formula to work out how property is divided however the Family Law Act 1975 sets out some factors that need to be taken into account when arriving at an agreement. The general process is set out below:
1. Work out the 'net asset pool' which includes all assets, liabilities and financial resources the couple had together and individually. Interests in property, companies, superannuation, vehicles, debts and other investments are examples of the most common items included.
2. Determine whether it is fair to order a property settlement or not.
3. If it would be reasonable to make orders, determine the contribution each party has made during and after the relationship whether it be financial or non-financial contributions.
4. Analyse the position of each person after separation, such as, income, age and health, parental responsibility and future prospects.
5. The Court will ensure that the division of property is fair and if any changes need to be made.
HOW CAN I MAKE A FINANCIAL AGREEMENT in a divorce?
If you and your ex-spouse reach an agreement on how your property and finances are to be divided, you can finalize this through a financial agreement, consent orders or both.
To create and finalise a financial agreement, both parties must seek independent legal advise, the lawyers of each party must sign a statement confirming that advise on the matter was given and exchange these documents. Once this is complete, both parties must sign the agreement.
If you have created a financial agreement but would like it to be legally enforced, rather than simply signing a financial agreement, you can apply to the court for consent orders.
An application to the court for consent orders must be made within 12 months of a divorce or 2 years since the end of a defacto relationship.