Family Law

Property Settlement

Going to Court for property settlement can be expensive, stressful, and often lengthy process.

Mendis & Gibson Lawyers

Property Settlement Lawyers Essendon and Melbourne CBD

Going to Court for property settlement can be expensive, stressful, and often lengthy process. Every client’s situation is different, so we strongly recommended to get legal advice from an experienced family lawyer. We can best advice and guide you on the possible solutions tailor made to your situation. Parties with particularly small asset pools are encouraged to proceed out of Court and try to settle through negotiations and dispute resolution supported by our expert legal team. In other matters, where settling out of court is not feasible, particularly where there is dispute or unwillingness to settle or negotiate over large asset pools, our legal team is here to support and guide our clients every step of the way with the court process till we attain a desirable outcome.

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When should I make an application for property settlement?

It is crucial to act immediately and not to wait too long to make an application for property settlement. For de facto relationships, proceedings must begin within 2 years of separation. For marriage, proceedings must begin within 12 months of a divorce order taking effect.

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What should I do if my name is not on the title of a property?

It is common that only one party’s name is registered on the title of a property. Even if this is the case, this property will form part of the property pool in the settlement. However, an experienced Family Lawyer will always advise client to immediately lodge a caveat to protect their interest of the property that where the registered property owner cannot sell the property or obtain a mortgage, refinance or get equity out of the property. 

A caveat may be lodged on the relevant property, which flags your equitable interest despite not being listed on the title. However, caveats are not a permanent solution, rather they are generally used temporarily to protect your rights on the property throughout the settlement negotiations. 

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What is required when determining property settlements?

Several factors are considered in negotiations and litigation in relation to property settlements. These factors include:
The paramount aim in property settlements is to reach an outcome that is just and equitable to all parties involved in the dissolution of the relationship.

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Will superannuation amounts be included in the property settlement?

Superannuation monies is considered as property between the parties under the Family Law Act 1975.

Court orders can be made for splitting superannuation interests, or alternatively the parties will enter into a superannuation agreement. The split will be achieved by a percentage or by a defined base amount.

Superannuation provisions may also be included in financial agreements between parties. A split of superannuation in financial agreements may be by percentage, a defined base amount, or by a method of calculating the base amount. 

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Do I have to go to Court for settling the property pool with my former partner?

It is highly recommended that all steps be taken to settle property settlement matters without proceeding to the Court process. Majority of cases are settled by pre-action procedures.

In order to fairly settle the matter, full and frank disclosure must be made by both parties regarding your assets and liabilities. Using this information, negotiations will commence between the parties in the interest of settling the matter outside of Court by entering into an agreement. If an agreement cannot be reached in the negotiation stage, then you will be directed to alternative dispute resolution where a mediator or conciliator will facilitate discussion to reach an agreement between you and your partner.

Proceeding to Court is costly and time consuming, so it is best to seek legal advice so your legal practitioner may negotiate on your behalf to reach a fair and final property settlement.

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What is the process for moving the property settlement through the Court?

If the matter is unable to be settled in the negotiation stages, then the parties will be directed to the Court process. Nevertheless, attempts must still be made by both parties to settle outside of the courtroom.

Process to commence proceedings:

  1. Making full and frank disclosure of all relevant information such as all assets and liabilities you may have.
  2. Drafting an Initiating Application, Affidavit in Support and Financial Statement. These documents will then need to be filed with the Court and served on the Respondent.
  3. Receiving Response, Affidavit in Support, and a Financial Statement from the Respondent.
  4. Receiving a Court date for a Directions Hearing. This type of hearing is conducted to tell the Court where the settlement negotiations are at, and the Court will make directions for next steps to resolve the matter.
  5. The parties will be directed to mediation or conciliation to settle the matter. A mediator or conciliator will facilitate discussion between the parties and endeavour to achieve settlement.
  6. If a settlement still cannot be reached, the matter will be listed for a final hearing date, an interim hearing date, or another mediation or conciliation conference.
When settlement has been reached, then Minutes of Consent Orders will be made and enforced.

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Can orders be varied down the track?

An application may be made to Court to order a variation or substitution of the orders between the parties. The Court may either vary or set aside the order, and if deemed appropriate they will make an order as a substitute for the original order. Ultimately, the decision is at the discretion of the Court to vary an order even if both parties consent to amending or setting aside orders.

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What will happen if my former partner does not adhere to the orders made?

If settlement has been reached and orders have been granted, both parties must adhere to the orders made. It is always advisable to include provisions in the property settlement order in the event one party defaults or breaches the orders.

If your former partner is not obliging, then you may make an application to the Court for the enforcement of orders. As such, an Application in a Case will need to be filed accompanied by an Affidavit in Support. This process will state that all attempts have been made to get the other party to the order to oblige without success. If satisfied, the Court may order property be transferred to the other party on trust for sale, payment of a sum of money, interest on unpaid and owed money, and costs.

If your former partner is not obliging to the orders, you may also seek a sanction for their breach. An Application – Contravention will need to be initiated through the Court. This application may be granted if your former partner acted intentionally or made no attempts to comply with the order.