Answers to 5 Commonly Asked Questions about Family Law Property Settlements

Question – My spouse and I just did our own agreement – we exchanged emails and signed up a letter of understanding. I was told that this is binding and I do not have to waste money on lawyers. Is that correct?

Answer: No, it is not correct. The only way an agreement can be binding is by a Minute of Consent Order being drafted and signed by the parties which is therein lodged and approved in the Family Court. The other way in which a final agreement can be binding is pursuant to the terms of a Binding Financial Agreement. A third alternative is to litigate in Court and have a Judge make an Order. No other method of resolving your financial dispute is final and binding. It is important, even if you have reached an amicable agreement, to consult with an accredited family law specialist to ensure that the agreement is put in to full force and effect.

Question – My spouse and I have three kids and separated two years ago. We are not divorced. I have started my own business. We didn’t have much at separation (after 20 years of marriage), but after the last two years being by myself, I have built up a million dollar business and I am really doing well for myself. I made this after separation – is it correct that my ex-spouse cannot get a piece of my business?

Answer: That is not correct. All assets and liabilities at the date that an agreement is done are taken into account and are valued. There is no magical cut off time at the date of separation. Whilst it is relevant to identify the assets and liabilities that existed at separation, they are not the assets which are divided at the time that an agreement is done. Further, the Law in Australia recognises contributions to children and to the family which are non-financial in nature. The fact that one spouse makes contributions post-separation to the children, is no less important than the other spouse who makes financial contributions after separation.

Question – I was told that in all cases there is a starting point of 50/50 in property settlement. Is that correct?

Answer: There is no presumption of how assets will be divided under the Family Law Act, nor is there any accepted or legislative starting point. The way in which assets are divided is not straight forward and relates to how, in the circumstances of any particular case, the contributions of each party are treated and weighed. One should seek specialist advice from an accredited family law specialist regarding the range of possible outcomes in their matter.

Question – I understand that I cannot get divorced until I have been separated for 12 months, but I can finalise my property settlement, spousal maintenance and child support agreement before the 12 months is up, can’t I?

Answer: Yes, that is correct. As soon as you separate, you can resolve and finalise issues concerning property settlement, spousal maintenance, child support and parenting matters. You must only be separated for at least 12 months before you can apply for a divorce.

Question – I received an inheritance of $50,000.00 from my Grandmother during our 20 year marriage. I can keep this right? My ex-spouse does not get a part of this do they?

Answer: The Law does not automatically exclude inheritances that one may receive during a relationship. Each case is different and depends on the length of the relationship, the nature of contributions, the timing of the inheritance, other assets and liabilities available for division and other factors. If one party receives an inheritance and presumably puts it towards matrimonial property, then this will count positively in that parties favour when it comes to assessing contributions during the relationship. In some cases, inheritances can be excluded from the pool and other assets divided. It is best to seek advice from an accredited family law specialist as to how an inheritance impacts on the particular facts of your case.

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