Reaching a financial settlement is always a cause of considerable concern to anybody contemplating divorce proceedings.
We have a great deal of experience in negotiating satisfactory financial settlements for our clients. We are accustomed to dealing with clients with complex financial affairs, including businesses, trusts and family debt arrangements.
Our main concern is to ensure that robust negotiations are carried out and that the proceedings are not unduly drawn out. If you have children, their welfare will be a very important consideration in the financial settlement.
The first step to a fair settlement is to ensure we have a clear and accurate picture of the assets of each partner. This process is called disclosure. Both partners must make a full and frank disclosure of their financial position before negotiations can start. Once we have all the details of the assets and agreed upon their values, we can then open negotiations to reach a settlement.
Most cases are settled by negotiation between the couple and their lawyers. It is normal, however, to issue an application to court to resolve a financial dispute so that use can be made of the court procedure. Sometimes this is necessary to force the issue of disclosure or to establish a reasonable time frame for the process.
Only a very few cases are actually resolved by a final hearing in front of a judge.
In matrimonial and de facto relationship property settlements, the court has the power to make a variety of orders:
- Periodical payments (i.e. spousal maintenance).
- The transfer of property. This is where ownership of an asset is transferred to one partner as part of the overall settlement.
- The payment of a lump sum.
- Splitting of superannuation interests
The law sets out the criteria which must be taken into account when formulating financial settlements. There is no codified formula for the division of assets – it is a discretionary system. The courts must take into account, in respect of spouses and de facto partners, your income and earning capacity, your assets and financial resources, your housing needs, the duration of the marriage or relationship, your overall contributions, your health and any other circumstances of the case. The court is required to assess and evaluate these criteria when considering the claims of each of the partners.
Different courts work to slightly different time-tables, but generally you need to allow about a year to 18 months from the date when we make the first application to the final hearing.
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