How can I negotiate and finalise a family law property settlement outside of court with my ex partner?
When couples separate, invariably some form of property settlement agreement needs to be reached concerning who takes what property. In part 2 of this family law property settlement series, we discuss the different vehicles that can be used to negotiate and finalise a family law property settlement agreement out of court.
NEGOTIATING A FAIR PROPERTY SETTLEMENT OUTSIDE COURT?
There are several options in which you can negotiate a family law property settlement out of court. These options include:
Negotiating your own agreement
This may be a viable option for you if you can tick all the following boxes:
Before embarking upon informal negotiations with your ex-partner, it is strongly recommended that you obtain: (1) a thorough understanding of what the net asset pool is worth; and (2) independent legal advice so that you can gain a clear understanding of what represents a fair outcome for you in all of the circumstances (see steps 1 to 4 in part 1 of the family law property series).
Attend Property Dispute Resolution (PDR) or a mediation facilitated by an accredited mediator
Many parties are successful in negotiating a fair property settlement through Property Dispute Resolution (PDR) or mediation that is facilitated by an accredited mediator.
PDR or mediation services are offered by a number of community organisations and accredited mediators. At Cargill Family Law, we prefer private mediation services that are facilitated by experienced family law practitioners who are accredited mediators.
Before embarking upon PDR or Private mediation - it is strongly recommended that you obtain: (1) a thorough understanding of what the net asset pool is worth; and (2) independent legal advice so that you can gain a clear understanding of what represents a fair outcome for you in all of the circumstances (see steps 1 to 4 in part 1 of the family law property series).
Retain a family lawyer to negotiate a property settlement outside court
Retaining a family lawyer to advocate on your behalf is a good option if there are some complex issues in your case and/or if you need the counsel and support of an experienced family lawyer to guide you through the process.
The processes that your family lawyer will step you through include:
HOW DO I FINALISE MY FAMILY LAW PROPERTY SETTLEMENT?
There are two ways to finalise a family law property settlement agreement:
1. By making an application for final property orders through the Family Court
Applying for final property orders involves filing proposed property orders and a detailed application (where both parties have made full financial disclosure) – to be assessed by a Registrar of the Family Court.
Whilst it is not necessary for either party to be individually represented by a lawyer - it is important to note that the orders will not be made if the Family Court Registrar forms the view that the proposed orders are not just and equitable in all of the circumstances (see steps 1 – 4 that are discussed in part 1 of this family law property settlement series).
2. By entering into a Binding Financial Agreement
This process strictly requires both parties to be individually represented by an Australian Legal Practitioner. A pre-requirement of entering into one of these agreements is that each party must receive independent legal advice as to the effect of the agreement and as to the advantages and disadvantages of entering into the agreement. In the absence of one or both parties not receiving the required legal advice, the agreement may be declared non-binding in the future.
A Binding Financial Agreement may also be set aside by the Court on a variety of grounds to include: failing to disclose all assets or financial resources or where there has been undue pressure or coercion exerted by one party to the agreement on the other. It is for this reason that the financial agreement should be very carefully drafted, and the parties thoroughly advised of their respective legal rights and whether the financial agreement represents a fair outcome for them having regard to the various considerations taken into account under the Family Law Act 1975.
In part 3 of Cargill Family Law’s family law property settlement blog series, we will be explaining the court process for when it has not been possible to reach a family law property settlement agreement out of court.
Stay tuned for the next instalment!
Any questions? Reach out to Rachel today for a complimentary 30-minute chat.
Author: Rachel Jones
Rachel is a skilled negotiator and litigator with 14 years experience as a multi-disciplined lawyer with a passion for family law. Rachel has two children, Harry and Jack and two fur-children (Olive & Simba) with husband Luke. With a keen interest in health and fitness, Rachel is a regular on the Lake Wendouree track which assists her to keep an even keel. She otherwise loves spending time with family, friends and finding pleasure and humour in life's simple things.