Consent Orders Property

Myth: 50/50 is not the starting point for property settlement

 

The FLA and its application in case law actually provides for a broad range of considerations to achieve a “just and equitable” property settlement. There are no fixed assumptions as each couple will have different circumstances and the FLA allows Judges a wide discretion in how the law is applied and the ‘weight’ given to each piece of evidence.

 The 4 Step Process

Essentially, there is a four step process to work through:

 

1

Quantify the Marital Pool – Work out the items that make up the marital pool, and what the value of the pool is.

·    The marital pool is valued currently, at the time of settlement, not at the time you separated.

·    It includes all assets, liabilities and superannuation in the possession or control of both parties, owned jointly or in your sole names.

·    This quantifying of the marital pool is done by the process of ‘full and frank disclosure’ – an ongoing obligation of parties to disclose documents like bank statements, tax returns, business financials and superannuation statements.

·    Some items may need professional valuations.

2

Contributions

Look at the three types of contributions of the parties at three particular times

·    coming into the relationship,

·    during the relationship,

·    after separation.

·    financial contributions – wages, salary, investment returns, assets or gifts from family on behalf of a party.

·    non-financial contributions – home maintenance and improvements, unpaid work in the family business.

·    homemaker and carer contributions – care of the children, upkeep of the home and other unpaid domestic duties.

These include direct (made by a party) and non-direct (from wider family) inputs.

3

Future Needs – Consider the future needs of the parties.

This includes things like each parties’ age and health, earning capacity, who has care of the children, the need of a party to retrain or undertake education and access to other financial resources.

4

Just and Equitable – Determine a “just and equitable” division of assets in all the circumstances above.

This is not only the % each party is to receive, but also the form it might take (eg: splitting superannuation or retaining the family home).

There is also another overarching consideration, that being whether an adjustment of the parties’ property interests is appropriate at all, or whether the parties’ should simply retain the property they currently possess or own.

 

Spousal Maintenance

A Spousal Maintenance claim may also be appropriate and included in Consent Orders where one party is unable to adequately support themselves following separation and the other party has capacity to financially assist them. This may be in the form of a lump sum additional payment or periodic payments over a specified time interval. Some of the same considerations are weighed up as in the property settlement.

 

Time Limits

Property settlements are not part of a divorce. Divorce is simply the legal end of the marriage and can be applied for after you’ve been separated for more than 12 months.

 

Property settlement can be done at any time following separation, but be aware that when you divorce, you have 12 months to either finalise your property settlement by Binding Financial Agreement or Consent Orders or commence Court proceedings. Later than this, and you must seek leave (permission) of the Court to start proceedings and provide a good reason for your delay.

 

De Facto couples have two years from the date of separation to finalise their property settlement or commence proceedings in court.

 

The Process

The process to obtain Consent Orders varies from case to case depending on many factors, but property settlements must start with quantifying the marital pool. This is done by each party providing full and frank disclosure of all relevant documents: bank statements, tax returns and assessments, superannuation statements, mortgage and credit card statements, valuations or market estimates of real estate, cars, businesses or investments. We will help you work out what’s relevant in your case. This obligation for disclosure covers a variable period (a minimum of 12 months before separation to the current time) and is ongoing until the time that a settlement is formalised.

 

From this disclosure, you can start compiling a balance sheet (AKA Assets and Liabilities Schedule) which will help establish the items and extent of the marital pool for division. It should be kept updated over time or as things change.

 

You should also draw up a Chronology of the key dates in your relationship, things like the parties’ date of birth, the start of the relationship, start of cohabitation, when children were born or property purchased. Keep them in date order with the oldest dates first. This will assist greatly if you seek legal advice as to your range of entitlement and other considerations. Family Law Tool Kits strongly urges you to obtain proper legal advice, preferably near the start or at least prior to signing and filing the Application for Consent Orders to make sure you’ve complied with the law, and the orders you’re seeking are properly drafted (written). Even if you proceed without legal advice, the Chronology will help the Registrar who needs to approve your Consent Orders to see your relationship context.

 

Once you know what’s in the pool (disclosure and Balance Sheet) and how and when the marital assets were bought in the context of the relationship (Chronology), you can begin negotiating with your spouse as to what you each think is fair. You can do this yourselves around the kitchen table or with the assistance of a mediator, lawyer or through dispute resolution.

 

When you reach an agreement, Family Law Tool Kits will help you to draft your Consent Orders, complete your Application for Consent Orders and attend to the processes for filing and finalising your orders.

So that’s the general overview of property settlements in Australia.

We’ll go into more detail as we work through the Tool Kit and generate your tailored, step-by-step plan. We’ll provide information and resources to consider as and when you need them to empower you with the knowledge and confidence to navigate what can be an overwhelmingly daunting task at a difficult time. Every step of the whole process is supported by direct links to relevant sections of the FLA and according to the new Family Law Rules 2021 and FCFCOA Practice Directions.

So if you're ready,
let's get started!

IMPORTANT NOTE: Family Law Tool Kits do not offer legal advice. All our kits are intended to assist self-represented parties to understand family law as it applies to them and follow the correct procedures to resolve their matters. In all circumstances we recommend that parties seek professional legal advice, but recognise that this is not always possible. We are committed to improving access to justice for all people involved in family law situations.

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