Generally speaking, there are 3 issues to discuss after a relationship breaks down irretrievably.
1. Divorce (if the parties are married). You cannot apply for a divorce until separated for at least 12 months. Separation can be under the same roof if not living as a couple.
2. Parenting. If there are dependant children (under 18 or still full-time students), satisfactory arrangements need to be made for the childrens’ care and maintenance. This can often be done by informal agreement with or without the help of a counsellor, but if agreement cannot be reached, may need to be decided by a Court.
3. Property and Financial.
There are basically 3 steps in ascertaining a fair and equitable apportionment of the relationship assets.
(A) Carefully calculate the nett asset pool (including both parties’ superannuation). This will involve obtaining current statements from financial institutions, super funds, credit-card providers etc., valuations of real estate and businesses.
(B) Calculate what is a fair and equitable share for each party. The starting point is a 50/50 distribution, but this will require adjustment to take into account many factors, including:
.what the parties brought into the relationship (which becomes less important the longer the relationship),
.which party has the primary responsibility for care and maintenance of children (if any),
.any relevant health issues, and
.the parties’ respective future earning capacity.
Although this is not an exact science, an experienced family lawyer, once in possession of all relevant information, will be able to provide a reasonably accurate estimate of what each party can expect to receive.
(C) Work out how the distribution is to be achieved. Is one party in a position to “buy out” the other, or will assets (perhaps even the family home), need to be sold? Is a superannuation split necessary? Is it preferable to document any settlement by way of consent Court Orders, or can it be done by way of a Binding Financial Agreement?
Parties who have ended, or who are contemplating ending, a relationship, are in stressful, and usually unchartered waters. Early advice from a competent family lawyer will remove some of that stress and provide a blueprint for negotiating an early and hopefully amicable property settlement.
To view more information about our Family Law service please click here