Property Disputes in Family Law
19 May 2022 in Family and Divorce LawDisputes commonly arise in the context of property settlements between separated couples (either married or de facto). In family law, a property settlement is a process where property is divided between two or more parties.
Property disputes in family law can be resolved both in and outside of court. Resolving a family law property dispute outside of court can save the parties time, money and stress.
The Family Law Act 1975 (Cth) largely governs the law relating to the legal distribution of property between separated couples. Where two separate couples have their property dispute resolved in court, the court will determine how the relationship’s property should be justly distributed between the parties through reference to factors such as:
- the overall value of the property to be distributed
- the financial contributions the parties made to the relationship
- the non-financial contributions the parties made to the relationship
- the future needs of the parties to the relationship
- the earning capacity of the parties
- the effect of property distribution on any children of the relationship
- any child support that has, must or may need to be paid by either party
- any financial agreements that exist between the parties to the relationship
More generally, property disputes in family law must be resolved in a manner which is just and equitable. It is important that you seek legal advice to understand the time limits that may restrict your access to the resolution of your property dispute in court.
If you are in a family law property dispute, you should seek legal advice to assess your situation and the dispute resolution options available to you.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
How can the Family and Property Lawyers at BSM help?
If you are in a property dispute with your former partner the family and property lawyers at Brander Smith McKnight can help by providing information on:
1. Legal Advice
Family lawyers can explain the nuances of the Family Law Act 1975 (Cth), how to avoid property disputes using binding financial agreements and identify property that is relevant to your dispute.
2. Alternative Dispute Resolution
BSM is committed to saving you money by avoiding costly court battles. We are proud of our record of settling over 95% of property disputes in a relationship breakdown with negotiation and alternative dispute resolution rather than litigation. Examples of alternative dispute resolution are:
Mediation
Mediation is an alternative dispute resolution option where an independent mediator helps disputing parties settle their dispute amongst themselves. This is done by the mediator facilitating discussion between the parties where they pursue a mutually beneficial solution. Mediation is confidential and mediators do not take sides or make decisions in relation to your dispute. Mediation is also a cost and time effective alternative to litigation.
Conciliation
Conciliation is a form of dispute resolution where parties try to resolve a dispute through discussion. Conciliation is assisted by a conciliator, who is an independent party that can suggest options for resolving the dispute, provide the parties with relevant information and encourage the parties’ pursuit of an agreement. Conciliators do not make decisions regarding the dispute and must remain impartial throughout the process of conciliation.
Arbitration
Arbitration is an alternative dispute resolution process which allows disputing parties to have their dispute decided by an independent party (an arbitrator). In arbitration, the disputing parties put forward arguments and evidence that the arbitrator will assess when making a decision in relation to the dispute.
Litigation
Litigation is not strictly an alternate dispute resolution process, but is often considered under this heading. It involves settling a property dispute through the court system. The parties present their case to an independent judge who assesses the respective merits and decides on the outcome. Most people in this position will be represented by a family lawyer who is familiar with how the court system operates and will effectively present your position to the judge. It can be a stressful and traumatic process for an individual and having an experienced lawyer to guide you through the legal system and advocate for you is extremely helpful. Although we work hard to save our clients money and try to avoid a court battle, litigation is sometimes unavoidable. The family lawyers at Brander Smith McKnight are experienced court advocates and have experience in all tribunals and courts.
3. Binding financial agreements
A binding financial agreement is an agreement that is entered into between a married or de facto couple. A binding financial agreement can determine how property and financial resources of either party to the relationship will be distributed if the relationship breaks down. In the context of property disputes, binding financial agreements can be an effective way through which to avoid property disputes following the breakdown of a relationship.
The family lawyers at BSM can assist you in drafting, amending, reviewing and negotiating a binding financial agreement and explain the legal rights and obligations that a binding financial agreement creates.
4. Consent Orders
Where an agreement is reached between parties to a property dispute between former partners, the agreement can be formalised and made legally binding. To do this, the parties to the agreement need to apply to the court for a consent order.
A family lawyer can help you draft, review, amend and negotiate the agreement regarding a property settlement and make an application for a consent order from the court.
Why BSM Lawyers?
Brander Smith McKnight’s family lawyers have extensive experience and expertise settling property disputes when a relationship breaks down. We resolve over 95% of property disputes without the need for litigation through assertive negotiation and alternative dispute resolution strategies.
If litigation is required, our lawyers have outstanding advocacy experience and experience in all tribunals and courts, including the Local Court, District Court, Supreme and Federal Court.
Call us to arrange a free 20 minute no obligation consultation that includes case evaluation and cost estimate.
Brander Smith McKnight has offices conveniently located in Sutherland, Parramatta, Wollongong and Sydney CBD.
FAQs
Is superannuation considered in a family law property settlement?
In the context of family law property disputes, superannuation is relevant in the distribution of property between disputing parties (see Section 90XC of the Family Law Act 1975). A property dispute lawyer can explain to you how superannuation will be dealt with in your property settlement.
Do I have to apply to the court for a property settlement within a certain time period?
Yes, there are time limits which restrict the eligibility of certain parties to apply for property settlements.
Married couples must apply for a property settlement within 12 months from the date of their divorce.
De facto couples must apply for a property settlement within 2 years from the date of separation.
In certain circumstances where an application for property settlement is not made in time, you can seek the Court’s permission to do so.
What is spousal maintenance?
Spousal maintenance refers to a former spouse’s entitlement to financial support from their former partner. Spousal maintenance is ordered by the court so that separated parties can continue to financially support themselves following the breakdown of their relationship.
What is a de facto relationship?
A de facto relationship exists where a couple are not married but live together on a genuine domestic basis.
In the context of property disputes, parties to de facto relationships can enter property disputes with each other and apply to the Court for property settlements.
