This article address the common issues relating to the process and how to work towards a smooth separation or divorce.
Following most separations, a common query of all clients is about the process. Specifically, common questions which are asked are:-
1. What is the process?
2. Do we need to go to Court if we agree?
3. How can we make this as cost-effective as possible?
The above queries reflect the intention expressed by most who are contemplating either a property settlement or parenting arrangements following separation; namely that the process be as painless, as cost-effective and as smooth as possible.
It is almost always the case that a settlement is less costly, and affords greater flexibility in outcome to both parties; if achieved outside of a Court setting.
How, then, is this achieved?
Representation and Advisors
It is essential for both parties to seek independent legal advice and be informed about both the joint and individual financial circumstances of the other. Utilising the collaboration of professional advisers should make things easier and more efficient and afford a greater opportunity for an early settlement for the client. In cases where there is a significant pool of assets with various structures and entities, it is often essential for the early collaboration of advisors.
Divorce and separation is more cost effective when the professional advisors work together both for the client, and with the client, to achieve an outcome – especially in cases where there is a significant pool of assets requiring various layers of advice and consultation.
Reaching a settlement without an initiation of Court proceedings is not always an easy process. Having an experienced divorce and family lawyer will assist you in having productive and effective negotiations and will ensure that your focus remains on matters which are relevant rather than matters which are emotive. An experienced divorce and family law advisor will ensure that this negotiation process is clear, correct, fair and reasonable – and which in turn produces a smoother process for clients.
Transparent and honest communication
Transparency about your financial circumstances is critical, and any attempt to shield property from being disclosed, or appropriately valued, will lead to greater complexity and greater cost. It is, therefore, critical to be full and frank in any disclosure. The consequences of suppressing evidence or attempting to mislead is far-reaching, and completely contrary to securing a painless, cost-effective and smooth settlement.
Once there is agreement on a financial settlement, the next step is to formalise that agreement by entering into Consent Orders in the Family Court, or in some circumstances, by entering into a Binding Financial Agreement to give effect to same.
If an agreement cannot be reached, an Application may be made to the Family Court of Western Australia for financial orders, including orders relating to the division of property and the payment of spousal maintenance or de-facto partner maintenance.
How does a court decide how to divide assets and debts?
There is no formula used by the Court to divide property following the breakdown of a relationship, and any order which is made will depend entirely on the particular evidence and factual circumstances relevant to the case at hand.
The Court must consider what is a just and equitable outcome based on the unique facts of each individual situation.
A common misconception is that there is a rule which requires an equal division of assets in any settlement reached following a separation. Such a rule does not exist.
The steps used by the Court to decide what is appropriate start with an analysis of the property and its value. Determining what percentage distribution is appropriate, or whether a percentage distribution is appropriate, will depend on the individual circumstances of the parties involved. You can read more about the process used by the Family Court here (link to Entitlement Article .)
How is superannuation dealt with?
Superannuation is property which is routinely dealt with following the separation of a married couple.
Superannuation can be split from one party to another, through a superannuation splitting order which is made in the Family Court. In negotiating a settlement which is amicable, parties who do not have independent legal advice often fail to address the treatment of superannuation which has accumulated in their settlement. The treatment of superannuation is an important tool in any property settlement, and to ensure that appropriate orders are considered, legal advice from an experienced family lawyer is essential and is recommended.
Time limit for applications for property adjustment
Depending on your relationship, there are different timeframes which apply.
a) If you were married, an Applications for property settlement must be made within 12 months of your divorce order becoming final;
b) If you were in a de facto relationship, an Application for property settlement must be made within 2 years of the date of cessation of your de-facto relationship.
If you do not apply within these timeframes, your proceedings will require special permission of the Family Court to proceed, and any Application of this kind will cause increased cost and time. An extension of time is not always granted, and consequently, it is critical that proceedings be implemented within the required time frames and which are referred above.
The information provided in this article is of a general nature and should not be relied upon for your family law matter. We recommend you book an appointment with us to discuss your situation.
ABOUT KERR FELS – DIVORCE AND FAMILY LAWYERS
Kerr Fels is located in the Perth CBD. Our team is experienced in settling complex divorces involving business entities, trusts and large asset pools, in addition to negotiating simple separations. If an outcome cannot be reached through negotiation or mediation, our team can represent you in the necessary legal proceedings concerning your property settlement.
Our philosophy is to provide client-focused, cost effective, efficient and pragmatic legal advice.
Book an appointment today.
P: (08) 6381 9080
L: Level 26, AMP Tower, 140 St Georges Terrace, Perth, WA, 6000