Property Disputes

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Property and money ways to settle your finances.

A woman stands against a white background and presents this video. She addresses the camera and continues speaking as a man and woman silently enact various scenes on screen.

Female speaker:/cite>

If you’ve recently separated from your partner, you’re probably wondering what to do about things like the family home, cars, bank accounts, debts and even items such as furniture and cutlery.

Vision shows the man and woman sitting silently at either end of on a white leather couch. They both look frustrated and are expressing negative body language.

Vision shows the woman speaking to a family lawyer.

Vision shows the man speaking to a different family lawyer.

Female speaker:

It can be difficult to know where to start. Seeking legal advice from a family lawyer early on can ensure that you approach the task with the best information possible. However you go about sorting out property following a separation, inevitably each person will have less than they did as a couple.

Vision shows the man and woman sitting at a kitchen table. They are working together, going through separation paperwork with pens in hand.

Vision cuts back to the woman standing in front of a white background.

Female speaker:

The aim of a property settlement is to finalise the financial relationship between two people—even where a couple has more debts than assets, they’ll still need to sort out how these will be distributed. There are no particular rules or laws that apply to how you must divide your property after separation.

Vision shows the man and woman in their front yard, facing their house. They have a look of confusion on their faces.

Vision shows the man and woman standing between a silver car and a red car parked in the driveway of their home. They have a look of confusion on their faces.1

Female speaker:

Whatever approach you take, it’s important not to get stuck on the idea of a percentage entitlement.

Vision shows the woman sitting exasperated in front of a lawyer. She holds up a piece of paper that reads “45%–55%”.

Female speaker:

It’s usually more useful to think of the practical effect of your property settlement.

Vision shows the man and woman sitting at a kitchen table. They are working together, going through separation paperwork with pens in hand. The man shows a figure on a calculator screen to the woman and she nods in agreement.

Vision cuts back to the woman standing in front of a white background.

Female speaker:

Will each of you be able to afford to live somewhere else? Is there a way of keeping the kids in the family home?

Vision shows the woman sitting exasperated, talking with a lawyer.

Female speaker:

Keeping perspective can also save you time and money. You’re unlikely to be happy in the end if you end up spending 1–2 years and some considerable amount of extra dollars just to chase down a similar amount of some extra dollars in your settlement.

Vision shows the man and woman sitting at wither end of a white leather couch. The woman has her arms crossed. The man stands up and walks out of the room.

Female speaker:

You don’t have to wait until your divorce comes through before commencing your property settlement. In fact, the longer you wait, the more complicated the financial issues may become. There are also strict time limits that apply if you want to finalise your property agreement through the Family Court. You should get advice as soon as possible to make sure you don’t miss any deadlines.

Vision shows the man sitting at a desk and talking with a lawyer.

Female speaker:

Even if you want to sort out our property issues with your former partner without outside assistance, it is still best for each of you to get good legal advice from a lawyer experienced in property manners. A lawyer can also give you advice about how to access your belongings or other property in the meantime, if you’re having trouble doing so.

Vision shows the woman talking on the phone with a notepad sitting in front of her on the table.

Female speaker:

If you are concerned about the cost, call around and ask a few different lawyers about how and when they will charge you.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Vision shows the man sitting at his desk, leaning back in his chair and putting his hands on his head in frustration. A large pile of paperwork sits on the desk in front of him.

Female speaker:

Getting good advice requires you to provide good information. You will need to some legwork. You do need to understand your family finances even if you haven’t taken an active interest in the past. But where do you start?

Vision shows the man sorting through paperwork.

Vision shows the woman photocopying a document.

Female speaker:

A good starting point will be to gather information and documents such as property appraisals form real estate agents, bank statements, loan contracts, superannuation statements, trust deeds, tax returns and payslips, share certificates and information about any businesses you or your formal partner owns.

Vision shows the man ticking off items on a checklist titled “PROPERTY CHECKLIST”.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Female speaker:

You should also collect information regarding your current household expenses such as food and electricity, medical costs and school expenses for children. Organise everything into a logical order. The more you do and the better you organise your information and documents for your lawyer, the less it will cost you in legal fees.

Vision shows the man organising documents into a divided folder.

Vision shows the woman placing a messy pile of documents onto the desk in front of her lawyer.

Female speaker:

If you are unable to access all these things, don’t panic.

Vision shows the woman looking at a checklist on which a question mark is penned next to the item “Loan contracts”. The woman exhales as she brings her hand to her mouth in a thoughtful pose.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Female speaker:

Family law requires that each person provides all relevant information to the other when sorting out a property settlement. So, take along everything that you can and your lawyer can give you information about how to seek any other important documents from your former partner.

Vision shows the man and woman sitting in stalemate with documents spread across the kitchen table.

Female speaker:

So, what happens if you’re not able to work out a settlement with your former partner? Most people are able to come to an agreement without asking the court to make any decisions for them but this isn’t possible or appropriate for everyone.

Vision shows the woman talking with a lawyer.

Female speaker:

For example, where one person is refusing to provide important information you should discuss with a lawyer any concerns you may have and how best to approach your property settlement.

Vision shows the man and woman standing outside, either side of the front door. They look at one another with comical stoicism, the man wearing the woman’s shirt and the woman wearing the man’s jacket.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Female speaker:

There are no one-size-fits-all solutions in family law. If you do ask the court to decide your property issues for you, there is no guarantee of a particular outcome.

Vision shows the man sitting at a desk and having a discussion with a lawyer.

Female speaker:

This means a lawyer will not be able to tell you exactly what a judge or magistrate would decide in your circumstances. The best a lawyer can do is to provide you an estimate of a range of possible outcomes.

The 4 Step Process

Female speaker:

There is a four–step process used by the Family Court for making decisions about property. The four steps are:

1. Identify and value all the property and debts.
2. Examine the contributions of both parties.
3. Look at the current and likely factors affecting each of the parties.
4. Consider whether the proposed outcome is just and equitable.

Female speaker:

The law does not take into account who left the relationship or who the people involved blame for the relationship breakdown.

Female speaker:

The first step is to identify and value each item of property and any debts. Anything in either of the parties’ names or in joint names will need to be identified regardless of how or when it was required.

Vision shows the man sitting at a desk and writing in pen onto a loose leaf of paper titled “ASSETS AND LIABILITIES”. His left hand scans over a document in a folder.

Step 2

Female speaker:

Step two involves the consideration of the contributions of each person.

Vision shows the woman on her laptop accessing a website with the text “Online Bill Pay” and “LOGGING IN…”

Vision shows the woman at sitting at an office cubicle.

Vision shows the man standing in an office cubicle and connecting wires to a computer monitor.

Female speaker:

The court takes into account all kinds of contributions including things such as wages, lottery winnings and gifts, as well as maintaining or improving the home, performing household tasks and caring for children. Contributions may have been made before, during or after the relationship.

Vision shows the man wearing a singlet and hammering against a wooden support beam.

Vision shows the man and woman wearing gloves and labouring clothes as they rake leaves in the garden.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Step 3
The man and woman sit at the kitchen table with pens in hand, going through paperwork and having a discussion.

Female speaker:

The third step considers the current circumstances of each party and the current and likely factors affecting each of them. For example: how old is each person and does either person have any particular ongoing health needs? How much is each able or likely to earn in the future? What responsibilities does each person have for the care and financial support for children or any other person? Once the assets and liabilities have been identified, contributions assessed, and the current and likely factors affecting each of the parties taken into account, the court can come up with what it thinks should happen with the property.

Vision shows the man and woman standing in the front yard surveying their house.

Step 4

Female speaker:

So, what ‘s step four all about, then? A this final step the court needs to consider whether this proposed division of property is just and equitable in the circumstances. It will step back and take a look at the impact of each person in real life.

Vision changes to the man and woman stepping back from the kitchen table and surveying their paperwork thoughtfully.

Vision cuts back to the female speaker standing against a white background, addressing the camera.

Female speaker:

So that’s a broad outline of how the Family Court deals with property matters but while this can be a good reference, you don’t need to follow the same process—you may refer to it as a helpful guide, as the process has been developed to try and come up with a fair division of property. And, remember, always get independent legal advice before you sign any written agreement.

Vision shows the woman sitting at a desk in front of a lawyer. She is about to sign a document while a witness stands over her left shoulder.

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END NOTES:

The information in these films is a general guide to the law. You should not rely on these films as legal advice. It is recommended you talk to a lawyer about our particular situation. © 2012 Legal Aid WA.

If you need legal help or referral, contact: Law Access NSW 1300888529 or www.lawaccess.nsw.gov.au

This film has been adapted from resources produced by the Legal Aid WA When separating project. Legal Aid NSW thanks Legal Aid WA for permission to reproduce this content. This information is copyright. All persons or organisations wanting to reproduce this material should get permission from Legal Aid WA

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