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  • Temara Willis

Post Separation Property and Financial Agreements

The end of a relationship is one of the most challenging events that a family can go through. Not only are you thrust into immense change, dealing with the emotional toll of the separation on yourself and your children, but you also need to make difficult and complicated decisions about the division of your property and assets.


While it is confusing and stressful, you don't need to argue this out or end up in court. There are several options for your consideration on how you reach an agreement on the division of the property, assets, and liabilities.


We recommended trying alternative solutions before considering legal avenues due to the significant cost and time involved. You can always consider legal options down the track if these alternative options are not successful. Divorce and separation is such a difficult time. Why make it even harder on yourself.


There is a timeframe in which you need to finalise your property settlement if you plan to lodge it with the court and make it legally binding. Applications need to be made for de facto couples within two (2) years of the relationship ending. If you were married, the matter needs to be made within twelve (12) months from the date of your divorce.


There are four guiding principles considered during a property settlement. The total of your assets and liabilities, contributions during the relationship, both financial and non-financial (weighted equally), future needs and if the agreement is equitable. If an agreement is reached and you plan to make it legally binding, it must satisfy the Family Courts requirements for justness and equitability. If the agreement is not considered just and equitable, the court may not formalise it.


If you and your ex-partner agree on how you want to separate your assets and liabilities, you can create your own agreement. You don't need to do anything else regarding the formalisation of the agreement if you don't want to. However, if it isn't legally formalised, a party could change their mind within the prescribed timeframe as above.


Suppose you don't think that you can reach an agreement directly with your ex-partner or require some additional support to help negotiate the arrangement. In that case, a Family Dispute Resolution Practitioner can assist. Family Dispute Resolution Practitioners (family mediators) are experienced working with separating couples to reach an agreement based on their needs and interests. A family mediator can also draft the agreement that you both develop. If you want to try and negotiate an agreement but feel like you need legal support, you can request that your lawyer attend the family law mediation process, or you can seek legal advice as you go through the mediation process. You can get legal advice before, during or after mediation. You do not need to sign any agreement before you feel comfortable doing so.


If reaching an agreement together even with a mediator isn't a viable option or mediation hasn't proven successful, you can engage a solicitor to negotiate a settlement on your behalf. However, this may be costly. If lawyer lead negotiations aren't successful, you can go to court, where a Judge will decide the property and liability division using their discretion.


A signed agreement demonstrates your intentions regarding your settlement. However, you will need a consent order or a binding financial agreement for it to be legally binding. You can make it legally binding by lodging your mutual agreement or the agreement prepared by your family mediator with the court yourself or by engaging a lawyer to complete this on your behalf.


Regardless of what option you use to reach an agreement, it is best to speak with a family lawyer about your particular situation. Family Dispute Resolutions Practitioners (family mediators) don't provide legal advice, and a consultation with a lawyer will help you work out what would be just and equitable for your situation.


It is essential to research your options and educate yourself. The Family Court website provides valuable information www.familycourt.gov.au. Or give Adelaide Family Mediation a call for information to help you achieve the best solution for your family.


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