Co-authored by: Isabel Strahan
KEY TAKE-OUTS:
- To ensure that the financial relationship between you and your ex-partner is officially severed, an agreement must be made outlining the division of property.
- The Federal Circuit and Family Court of Australia is committed to attempting to resolve all matters non-litigiously through alternative dispute resolution, such as mediation before going to Court.
- Mediation is usually conducted as a meeting between the two parties and an independent mediator who helps navigate the negotiation process. The party’s legal representatives can also be present if it is preferred.
The process of separation is lengthy and complex, especially when children and/or property are involved. To finalise a separation, the two parties must agree/consent to the division of property in order to ensure that the financial relationship is officially and legally severed. This process ensures that neither party is entitled to the other’s assets and liabilities that have been acquired before, during or post separation.
Without the appropriate property settlement, the other party may make a claim to any asset in your possession. For example, if you were to pass away, they may be entitled to your estate, or if you were to win the lotto or receive a lump sum payment such as a redundancy, they may be entitled to part of that payment. Therefore, property settlements are extremely important in protecting your assets for the future.
Given the sensitive nature of family law proceedings, the Federal Circuit and Family Court of Australia is committed to resolving matters through the consent of the parties prior to commencing Court proceedings. The parties MUST demonstrate that genuine steps have been taken to resolve the matter before initiating proceedings in Court. Commonly, the genuine steps requirement is satisfied through the parties participating in mediation as a form of alternative dispute resolution.
Mediation is a cheaper, quicker, and less stressful process than Court proceedings which can often span across a long period of time and be extremely costly for both parties.
Property Settlement Mediation Agreement
Mediation typically involves the two parties meeting with a mediator, who is an independent person trained in assisting parties to negotiate outcomes. Your legal representative is also able to attend the mediation with the relevant party if you wish to engage a solicitor. However, the lawyers will not lead the discussion but rather are there to provide support and legal advice regarding the potential division of property.
We recommend that you seek advice before you enter into a negotiation with an ex-partner to ensure that you are aware of your rights under the Family Law Act, and the risks associated with any potential agreement, and to guarantee you are adequately supported through this difficult period.
Your lawyer will need to prepare for the mediation by assessing the following:
- Listing the assets and liability of both parties held jointly or separately,
- The value of each asset and liability,
- Collating all necessary documents to be in the best position to negotiate,
- Identify what is most important to you personally to retain and why, and
- Provide advice about being prepared to negotiate on less important items.
During the mediation, the mediator will guide the discussion and assist the parties in coming to a resolution. Since COVID-19, mediations are normally conducted via shuttle through Microsoft Teams or Zoom. Ideally, breakout rooms will be available for each party to discuss with their lawyer (if present), or for the mediator to ‘shuttle’ back and forth between the parties until an agreement is reached.
If an agreement has been reached, the lawyers will then draft the appropriate legal documents which will outline how the property is going to be divided between the parties, usually Consent Orders. The Consent Orders will then be filed in the Federal Circuit and Family Court of Australia and returned as a ‘Sealed’ document- indicating that the Court is in agreeance with the proposed split. Sealed Consent Orders become a binding document capable of enforcement.
If an agreement is not reached and the parties’ positions are so far apart that negotiations will unlikely be successful, your lawyer may ask whether you would like to initiate proceedings. This means that you have exhausted all avenues and taken the abovementioned genuine steps at resolving the matter non-litigiously however, have been unsuccessful. The next step would be to commence Court proceedings and prepare the relevant documents to file in Court.
Family Violence and Property Settlement Proceedings
Going through a separation is made more difficult when there is a history of family or domestic violence. Mediation may not be suitable in these circumstances, and in parenting matters, you may be eligible for a ‘Section 60I Certificate’ which will indicate to the Court that there is an evident power imbalance that means that negotiations would not be suitable. It is recommended you seek legal advice in relation to being a victim of family or domestic violence before participating in mediation in order to ensure that negotiations are undertaken appropriately.
How can we help?
At Coutts, we understand that separations are complex and highly emotional matters. Our Family Law Team is dedicated to resolving matters in a just and fair way in order to achieve the best outcome for our clients. Our team is extremely skilled at settling matters outside of Court, which assists parties in keeping their legal fees as low as possible and resolving the matter in the shortest possible time.
Please reach out to our friendly Family Law team at Coutts Lawyers and Conveyancers, who are more than happy to assist you during this difficult time.
ABOUT ISABEL STRAHAN:
Isabel joined the Coutts team in January 2022, as a Paralegal working within our Family & Criminal teams. She is currently studying a Bachelor of Laws and Bachelor of Arts, Majoring in International Relations and Minoring in Cultural Studies at the University of Wollongong. It is her dedication and hardworking nature that will see her go far within Coutts.
For further information please don’t hesitate to contact:
Isabel Strahan
Paralegal
info@couttslegal.com.au
1300 268 887
Contact Coutts today.
This blog is merely general and non-specific information on the subject matter and is not and should not be considered or relied on as legal advice. Coutts is not responsible for any cost, expense, loss or liability whatsoever to this blog, including all or any reliance on this blog or use or application of this blog by you.
