Affordable break-ups – the sensible approach to dividing property

If you have recently separated, one of the concerns you will probably have is the size of your legal bill after your property matters are sorted.

Below are our top tips for keeping your family law property costs down without skimping on sound legal advice.

Tip 1 – do the groundwork yourself

A specific process is used when negotiating a property settlement. The Family Court of Australia refers to this as the 4-step approach. The first step is to identify the parties’ assets, liabilities and financial resources. This information is critical to determine the division of your property.

Compiling your financial information early in your matter and presenting it in an organised fashion has many benefits. It can be used at any stage – from negotiations, during dispute resolution and if necessary, for Court proceedings. As well as having a snapshot of your asset pool to assist in negotiations, you will likely save on costs associated with others having to arrange the information on your behalf.

When listing assets include their approximate value. Most local agents will provide a written market appraisal for real estate at no cost. For motor vehicles, you can visit www.redbook.com.au and obtain a printout of private sale figures for particular models.

Remember to include all assets – those that are jointly and individually held as well as those that are held with a third party. Assets comprise real estate, motor vehicles, furniture, art, antiques and collectables, shares, investments, superannuation, cash and business interests.

When listing liabilities include mortgages, loans, overdraft facilities and credit cards and for financial resources include wages, and income from other sources such as rental properties, dividends, business and company interests. Bank statements, share information and superannuation statements can easily be downloaded from the internet. Information about past or future inheritances or other windfalls will also need to be provided.

If relevant, financial returns for companies or partnerships should also be included and, if possible, the last three years’ tax returns for each party.

All your assets and liabilities will be put into a balance sheet to compare the respective net position of each of the parties to assist in determining a percentage ‘split’ between the couple.

Tip 2 – Don’t avoid or put off getting legal advice

The sooner you know your rights the better.

Many separating couples attempt to finalise their own property settlement or avoid settling their financial matters altogether. This is dangerous for several reasons. Failing to close joint accounts or to transfer assets is messy, leaves the parties vulnerable to future claims and makes it difficult for them to move on. It may also preclude them from getting credit with a subsequent partner and opens the potential for dispute.

Do It Yourself property agreements made in the absence of legal advice, often contain ambiguous provisions and are unenforceable. Without a complying Financial Agreement or Consent Orders (see below) parties are generally unable to access important, money-saving stamp duty and tax concessions when it comes to transferring real estate from one to the other.

Family law is discretionary and no two cases are the same. Investing in an initial interview with a family lawyer will provide guidance as to a likely settlement outcome and a basis from which to start negotiations.

Your lawyer will recommend any urgent measures you may need to take to protect property such as making new wills, powers of attorney and severing a property joint-tenancy. They will advise you of your legal rights generally and discuss the financial and other implications of a likely settlement. Your lawyer will explain the impact that your separation has on your will and provide guidance on reviewing your estate plan.

Money spent early after separation on sound legal advice can return significant savings down the track.

Tip 3 – If possible, avoid going to Court

Generally, Court proceedings should be an option only when urgent orders are critical, the matter is highly complex, or when one or both parties are intractable, and a settlement is impossible.

Court proceedings exhaust time, money and emotions, and can usually be avoided. Mediation is a powerful tool, and up to 65% of all family law matters are settled at mediation. Mediation can be formal or informal and can result in the matter being resolved and legally finalised by entering into a Financial Agreement or Consent Orders.

A Financial Agreement is a legal contract between the parties that sets out how their property matters will be resolved.

The agreement may provide for the closing of bank and loan accounts, the payment of money by one party to the other, the retention by one party of certain property such as a motor vehicle or furniture, transfer of the family home in exchange for a sum of money or the marketing and sale of real estate and distribution of the proceeds.

The parties are expected to cooperate in good faith and to uphold their obligations under the agreement and fulfil all requirements.

Financial Agreements are not approved or registered in Court – to be enforceable, or binding, they must comply with the formalities prescribed by legislation. Each party will need to obtain independent legal advice before signing the agreement. Binding Financial Agreements can be expensive and not every lawyer will draft them as they tend to be unfair to one or the other party, and try to avoid the jurisdiction of the Family Court. Recent cases have highlighted that in some situations the Court will overturn a Financial Agreement.

Consent Orders are considered more formal than Financial Agreements because they must be approved by a Registrar of the Court and are the preferred course of resolution by most lawyers. They deal with the same matters as a Financial Agreement but must include full financial disclosure by both parties and will be approved if the Court is satisfied that the orders are just, ‘fair and equitable’ in all the circumstances. Consent Orders are made by agreement between the parties but don’t involve going to Court. In some limited instances, Consent Orders can be overturned if a party’s situation has changed significantly or there was fraud, but for the most part, they deal with the parties’ property settlement fully and finally.

Consent Orders will provide for the same types of matters as a Financial Agreement and can also include orders concerning any children of the relationship.

Tip 4 – Don’t stress the small stuff

You should never forfeit your legal rights however there are times when it is practical to agree to disagree, let things slide and move on. When emotions are involved it’s easy to get bogged down in minor issues that get in the way of a resolution and ultimately have little impact on the outcome.

For example, the difference argued in the value of a motor vehicle can soon be depleted by the costs of disagreeing, particularly if lawyers are instructed to get involved. Formal valuations cost money but are justified in many cases, however unless the motor vehicle is an irreplaceable classic, a middle-range figure obtained from Redbook should usually suffice.

Of course, there is little you can do if your ex-partner is antagonistic and fails to relent, but maintaining composure should eventually prevail.

Tip 5 – Consider the lawyer/client relationship

Your lawyer is there to help you, but you can also assist with the process. Even though it may be a difficult time emotionally, prompt and efficient responses to lawyer’s requests, and reading documents carefully can keep costs down. If a lawyer has to chase you for information, you send information in dribs and drabs, or do not properly read correspondence, this can lead to extra costs. The Family Court of Australia website has helpful advice about forms and procedures that will help keep you up to date with terminology and give you a good understanding of the process.

Keep communication limited to relevant issues – sending long text-chains of ‘he said/she said’ and or emotional emails can be unhelpful and takes time for your lawyer to read. In some cases, a lawyer may suggest you seek counselling for some of the more highly charged cases to help you process a break-up.

Conclusion

In between an informal or non-existent property settlement and a protracted battle where the parties refuse to budge, lies a fair and effective resolution that keeps legal fees in check.

These are just some of the ways you can use your time and resources wisely to help finalise your matter cost-effectively.

If you or someone you know wants more information or needs help or advice, please contact us on (02) 9918 0222 or email office@millardslawyers.com.au.