Property settlement after separation is one of the things you and your ex-spouse will have to sit down and discuss with. In Australia, the Family Law Act governs the relationships of both de facto and married couples. The rules on separation and divorce are under The Family Law Act 1975 (CTH).
Depending on whether or not you get a divorce, your application to the court for property settlement can happen immediately or within 12 months of the date of divorce. If you are in a de facto relationship, you need to apply within 2 years of the date of separation.
Should you attend a mediation?
Compared to a court process, mediation is less stressful. It is also a way to settle a disagreement on how to divide the property and reach an agreement quicker than you would in a court. The choice to speak to a divorce property solicitor at this stage is entirely up to you.
As a dynamic alternative process to resolve disputes, you will need a mediator during a mediation instead of Brisbane divorce lawyers. Their role is to help both parties negotiate and come to a mutually acceptable agreement with regards to property settlement after separation.
Some of the questions commonly asked in a property settlement are:
- Does the property have to be split 50/50 between me and my former partner?
- If I move out of the family home, do I lose my rights to the property?
- Is there a way to prevent the other person from selling the house?
Settlement Reached or Not
A mediation can go two ways – an agreement is reached or not.
If both parties reach an agreement during mediation, you need to apply for any of the following:
Informal agreement is when an agreement is reached without anything in writing. This leaves room for a further claim on a property to be made 12 months after the divorce date or 2 years after the de facto relationship concludes. There are instances, however, when a party is granted a claim after mediation by the court.
Binding financial agreement (BFA) is where parties put their agreement in writing and have it signed by their lawyers. For this process, parties must obtain independent legal advice from experienced divorce solicitor Brisbane has although a BFA is not filed in court.
Court orders by agreement or consent orders make a property settlement final and binding. What is even better is that it exempts you from paying stamp duty on property transfers, similar to when you have a BFA.
If an agreement is not reached during mediation, court orders will follow. This is especially true if the need to alter the interest on an existing property is just and equitable.
The process usually starts with identifying existing legal equitable interests on a property that each party has and ends with the court looking at all the circumstances and identifying if the result reached is just an equitable.
Generally, the court will take a 5-step approach in determining the property settlement after separation.
To ensure that your rights are protected, you should seek legal advice. With 30 years of experience, Mcphee Lawyers is the family law specialist in Brisbane that you can rely on. Visit at https://www.mcpheelawyers.com.au/blog/great-scott-can-the-court-order-a-property-settlement-after-30-years-of-separation/