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Division and Distribution of assets and liabilities after the breakdown of a marriage or de-facto relationship is vitally important to the future security of both parties. It is very important to obtain accurate and prompt legal advice to ensure peace of mind for you and your children’s future and a fair and equitable distribution of assets. Contact our best family lawyers Adelaide!
There are a range of options to achieve division of assets including negotiated property settlements, and court action. Should you reach agreement on division of assets, the agreement should be formalised with consent orders through the court system or a Financial Agreement.
Consent Orders – If you and your former partner agree on the terms of your property settlements, you can simply apply for consent orders to be made without going through the court system. The orders will be legally binding and enforceable, as if they had been made by a judicial officer following a court hearing. However, before making consent orders, the Court will consider the facts of your case and determine whether the terms of your proposed settlement are just and equitable.
Financial Agreements can be prepared before the commencement of de-facto relationships or marriage, during, upon or after separation. Financial Agreements made prior to marriage are also sometimes called ‘Pre-Nuptial Agreements’.
Financial Agreements are important and quite common where one party has substantially more assets than their partner at the beginning of the relationship. These agreements are also common in second marriages or de-facto relationships and allow you and your partner to decide how, in the event of separation, assets and liabilities will be distributed between you. However, in some circumstances Financial Agreements can be set aside by the court.
Application to the Court for Property Settlement – If you have not been able to negotiate the terms of your property settlement with your former partner, an Application will need to be made to the Court. In court, a variety of factors will be considered including assets owned by parties at the beginning of a relationship, contributions made during the relationship (including those by the home maker) and the future needs of each party. For instance, what is each person’s earning capacity and who has primary care of the children?
In addition to the Application, each party must file a Financial Statement, which sets out all of the relevant financial information, including:
- All assets & liabilities
- All sources of income
- All other financial resources
Superannuation is considered the same as any other asset which people may bring to or accumulate during and after a relationship. A superannuation entitlement can be treated like property and ‘split’ between the parties as part of the property settlement.
There are options for splitting superannuation including entering into a formal written agreement, seeking consent orders and seeking a court order if you fail to reach agreement.
There can be penalties for failure to fully disclose financial information, such as being made to pay for the other party’s legal fees. Liptak Lawyers can assist you by negotiating on your behalf, preparing your documentation and ensuring that all relevant matters are considered in determining a satisfactory settlement.
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