When couples separate, invariably some form of property settlement agreement needs to be reached concerning who takes what property. We discuss the different vehicles that can be used to negotiate and finalise a family law property settlement agreement out of court.

Family law property settlement outside of 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:

  • both you and your ex-partner can commit to being respectful to each other at all times during the negotiations.
  • the net asset pool is clearly identifiable and both parties agree to obtain valuation evidence wherever necessary (preferably jointly) to ascertain the value of all substantial assets.
  • both parties are willing to be fully transparent and disclose all documents evidencing their various property interests and financial resources.
  • the legal issues at play are not complex or controversial; and
  • both parties are on an even footing from a negotiating perspective.

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

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:

  • Obtaining and exchanging all necessary documentation from your ex-partner to ascertain the value of all assets and financial resources that they hold an interest in.
  • Obtaining all valuation evidence that is necessary to value the asset pool (such as property and business valuations)
  • Providing you with independent legal advice to include a recommendation as to what would represent a fair outcome for you in all of the circumstances.
  • Negotiate a settlement agreement with your ex-partner (usually through their legal representative)
  • Finalise the agreement reached.

How to finalise your 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.

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.

Any questions? Reach out to Rachel today for a complimentary 30-minute chat.