If your marriage or de facto relationship has come to end, it is likely you are going to require a property settlement. Property settlement is the term for dividing up any jointly or individually owned property of the parties to the marriage and either selling, disposing or transferring them into one or the other parties’ sole name.
Under the Family Law Act 1975, the court and legal system often use a 4 step process to decide what might be an appropriate division of assets between you and your ex partner.
In this 4 week blog series, we are going to explore 1 step at a time to help you understand the family law process you may find yourself involved in.
Step One: Identify the Asset Pool
Generally, all property must be taken into account whether it was acquired before or during the relationship or after separation. Property includes assets of one or both of you. This can include real estate, superannuation, shares, cars, jewellery, savings, furniture and effects. Where the value of assets is unclear or cannot be agreed by both of you, independent valuations and/or appraisals can be obtained to confirm the value.
We then must consider the liabilities of the relationship. Similarly, we consider liabilities that existed at the time of property settlement and therefore can have been accumulated before the relationship, during the relationship or post-separation. When determining the liabilities, we also consider liabilities that may flow from a proposed division of assets for example capital gains tax, stamp duties or other financial issues that may be future liabilities related to the current asset pool.
When determining what the asset pool is, we must also identify any financial resources available to either of you. A financial resource can be money or assets over which you or your ex-partner has control or access, or future entitlements but may not specifically be in your or their own name. For example, if you ex-partner slipped and fell at a supermarket and was in the processing of filing a claim when you separated, then those personal injury monies they may be going to receive for their injury need to be identified and considered as part of a property settlement.
Next week we look at Step 2: Assessing the Parties’ Contributions to the Asset Pool.
If you have questions about property settlement matters, you can contact one of our experienced staff to discuss how the Family Law system may apply to you.
Ebony Cunningham – Senior Associate
Ebony graduated with Honours in a Bachelor of Law and Legal Practice and a Bachelor of Behavioural Science (Psychology) in 2011.
Ebony specialises in the areas of family law, criminal law and civil litigation. Ebony is a member of the complex criminal panel and the family law general panel for the Legal Services Commission of South Australia.
(08) 8725 6969
Legal Secretary: Ms Lauren Lewis