The division of assets and debts in a divorce or separation can emerge as one of the most complex and contentious aspects of the process. In Western Australia, understanding the intricacies of property settlements can help alleviate stress and bring clarity to how assets and debts are divided between separating parties. By engaging the services of a knowledgeable Family Lawyer, you can ensure the protection of your interests and work toward a final settlement that is fair and equitable to both parties.
In this informative guide, we will walk you through the essential aspects of property settlements in Western Australia, covering topics such as how these settlements are determined, the factors considered by the Family Court and the critical role of a Family Lawyer in guiding you through the process and helping you achieve a fair outcome.
Australian family law operates on the premise of a ‘just and equitable’ division of property in divorce cases. In Western Australia along with the rest of Australia, this division is not based on a fixed percentage (like a 50/50 split), but rather on a case-by-case assessment that considers a wide range of factors in order to determine an equitable property settlement. By familiarising yourself with these factors and understanding how the process works, you can be better equipped to navigate the complexities of property settlements in your divorce case. After all knowledge, is power.
Throughout this article, we will discuss the importance of seeking legal guidance, and we encourage you to seek the expertise of an experienced Family Lawyer in Western Australia, to help you understand each step of the property settlement process. With the right support, you can safeguard your interests and secure a property settlement that accurately reflects the unique circumstances of your relationship breakdown.
1. Key Steps in the Property Settlement Process
The property settlement process in Western Australia, generally involves several key steps, including:
a. Identifying and Valuing Assets and Liabilities: The first step in property settlement involves determining the combined and sole assets and debts of both parties. This may include real properties, chattels, bank accounts, superannuation, vehicles, shares, family businesses, trusts, and personal belongings, as well as mortgages, loans or credit card debt. The assets and liabilities are calculated at the time of an agreement, not at the date of separation. This is why separating your finances early is key.
b. Assessing Financial and Non-Financial Contributions: Both parties’ financial and non-financial contributions to the relationship are evaluated, including income, child care, homemaking, and any other responsibilities that contributed to the acquisition, conservation, or enhancement of the assets. Initial contributions, contributions during the relationship and post-separation all are factored in. An overall assessment of contributions is then determined.
c. Evaluating Current and Future Needs: This step involves considering a number of factors such as the parties’ ages, health, earning capacities, parenting arrangements, and any other relevant considerations are taken into account to determine overall whether either party should be provided an adjustment based on these “future needs”.
d. Ensuring a Just and Equitable Outcome: Finally, the last step involves an assessment of whether the overall percentage determined, being the the proposed division of property and debts, is just and equitable for both parties, based on their unique circumstances and considering the above factors.
2. Factors Considered in Determining Property Settlement
Various factors are taken into account when determining an equitable property settlement in Western Australia. Some of these factors include:
- a. The Duration of the Relationship: The length of the relationship can impact the division of assets, with greater weight often given to longer-lasting unions.
- b. Care for Children: The parent primarily responsible for child care may receive a greater share of the assets to ensure the child’s well-being.
- c. Earning Capacity: Differences in earning capacity between the parties can affect the division, with the party earning less potentially entitled to a larger share to accommodate their financial needs.
- d. Health and Age: Factors such as health and age are taken into consideration, with an older or less-healthy spouse possibly entitled to a larger share to accommodate for medical expenses or reduced working capacity.
3. Utilising the Expertise of a Family Lawyer in Property Settlement
An experienced Family Lawyer plays a crucial role in ensuring that your property settlement is fair, just, and equitable. Key contributions from a Family Lawyer include:
- a. Legal Guidance: A Family Lawyer will provide you with essential legal advice, ensuring you understand your rights and obligations in the property settlement process.
- b. Case Preparation: A Family Lawyer will help you gather the necessary documentation to support your case, develop a clear strategy for negotiating or presenting your case both outside and inside of Family Court, and advise you on how the law may apply to your particular circumstances.
- c. Representation in Court: If your case proceeds to court, your Family Lawyer will represent your interests effectively, preparing persuasive arguments and presenting evidence to the judicial officer in support of your desired outcome.
- d. Assistance in Negotiation and Mediation: Your Family Lawyer can assist in negotiating with the other party or participating in mediation sessions, ensuring that your interests are protected, and pursuing an amicable resolution that is fair and equitable to both parties.
4. Potential Outcomes of Property Settlement Cases
The outcomes of property settlement cases in Western Australia, typically fall into one of the following categories:
- a. Negotiated Agreements: The majority of cases are resolved via negotiated agreements between the parties (whether via communication between the parties and their Solicitors or via a Mediation), resulting in a legally binding financial agreement or consent order that reflects the agreed-upon division of assets and debts. Any agreement, so long as it severs the financial ties between the parties, can be made into enforceable Family Court Orders (without the need to attend Court, so long as they are entered into via consent between the parties);
- b. Family Court Orders: If an agreement cannot be reached, the case will proceed to Family Court, where a judge will determine the appropriate division of assets and debts based on the evidence presented and the factors outlined above.
- c. Spousal Maintenance: In some cases, one party may be ordered to provide financial support to the other, known as spousal maintenance, in addition to the division of assets and liabilities. Spousal maintenance may be awarded based on various factors, such as one party’s inability to support themselves or the other party’s capacity to provide support.
Understanding the process of property settlements in Western Australia, is crucial in ensuring a fair and equitable division of assets and debts following a divorce. By engaging an experienced Family Lawyer, you can be confident in receiving essential guidance and expertise at every step of the process, enabling you to work towards a satisfactory outcome for all parties involved. With a thorough understanding of the factors considered in property settlements and the expert support of a skilled Family Lawyer in Mandurah from Coastal Family Law, you can navigate this complex area of law with greater ease and confidence.
We act for clients from the Peel Region, the South West and generally anywhere in Perth metropolitan area. Simply because we are based in Mandurah, does not preclude you from engaging with us if you live further away. We can accommodate meetings in person and meet with you in Perth or via the telephone or video-conferencing. Some of our client’s reside in Adelaide, Bunbury, Busselton, Albany, Karratha and Alkimos.
