If you can’t reach an agreement on how the assets and liabilities of the relationship should be divided after separation, then you may need to go down the route of court proceedings…
Court is always the final step in any family law dispute. Commencing proceedings is always a “last resort”. Most property disputes resolve before reaching court trial. You can read more about the steps before litigation on our general property settlement page.
It’s important to approach your former partner to participate in some form of dispute resolution. This may be as formal as a mediation or conciliation, or as casual as going for a coffee or communicating openly over email.
The aim is to try and reach an agreement which you both are comfortable with. By doing this, the final decision will not be left to the court - who make orders which they think are “just and equitable”, rather than what you or your former partner may specifically want.
If this doesn’t work and you’re stuck trying to figure out how to divide everything, or you are receiving threats, it may be time to engage a lawyer.
How We Can Help
If you are contemplating proceedings, engaging a lawyer now can show your former partner that you are serious about trying to reach a resolution.
We start by understanding your issues, what you might be seeking or proposing, what the assets, liabilities and financial resources are and give you advice as to what you may be entitled to. Our expert separation lawyers can estimate what a fair split looks like and take into account what you may specifically want, for example to keep the family home, vehicles, bank accounts and other finances.
After we have an understanding, we start by making one final effort for your former partner to engage in negotiations. We do this by drafting a negotiation letter about your position and how we propose to resolve the matter. This ensures that we have complied with the court’s pre-action procedures and if a response is received, can save you greatly from the expenses of starting court proceedings.
If we do not receive a response or your former partner does not engage in good faith negotiations, we take our most hands-on approach. We will assist you by drafting the necessary court documents, compiling your disclosure and lodging your court documents.
Once the proceedings are commenced, we can represent at hearings and provide you with ongoing advice.
What Are The Benefits Of Property Litigation?
We will guide you through the entire process.
First of all, you will receive an in depth, hands on approach from our experienced legal team.
We will continue to work with your former partner or their legal representation to engage in negotiation and attempt to resolve your dispute at all steps along the way. If an agreement is reached, we can finalise the agreement into Consent Orders.
Secondly, court proceedings compel your former partner to engage with the process. They will need to file documents, provide their financial documents, attend court hearings and comply with orders that are made. This means that they will be unable to avoid dealing with the dispute once it is commenced in court.
If your case settles along the way, or at trial, your financial affairs will be finalised. The orders will untie you and your former partner’s financial relationship and you will have the ability to move on.
With court orders, you will walk away with decisions that are final with a high level of certainty. They can only be set aside in limited circumstances.
Lastly, the orders will also be enforceable if the need arises.
What We Need From You
If proceedings need to be commenced, we will need certain things from you.
We need to understand the financial picture of the relationship. This includes detailing the assets and liabilities (debts) you or your former partner owned (together or separately).
You will need to have an idea of the assets and liabilities (debts) you may want to keep, split, or give away. We also will work with you to acknowledge your objectives in terms of what you may be personally entitled to.
Both you and your former partner have a duty to exchange financial information and the relevant documents e.g tax returns, payslips, bank statements, debts. This allows both parties to know what eachother has and finalise the asset pool. Both assets in Australia and overseas are taken into account for the asset pool.
Can we reach an agreement before court?
Absolutely. As you go through the process, there are different court hearings like conciliation conferences, directions hearings etc that the court will set in place to try to reach an amicable settlement before the trial stage.
There is likely a positive outcome that can be reached before going to trial.
That is why we offer fixed fee packages.
In arranging a fixed fee package:
- We work with you on different terms to find the right package for you;
- We can offer flexible milestone packages like drafting and completing your documents, representation up to certain court hearings or full representation;
- We can offer flexible payment options to break up your costs of litigation, depending on which package is right for you; and
- We partner with Quickfee to provide payment plans for your case.
Once a fixed fee package is agreed, we will only charge you in accordance with our agreement. Therefore, it gives you peace of mind that you will know what you are up for, upfront.
Our family lawyers are here to help you
The following has been understood to be property of a relationship
- Real estate including houses, property and land (including overseas)
- Vehicles including cars, boats, caravans etc.
- Personal property like jewellery, furniture and electronics, whether they were purchased before or during the relationship
- Businesses that you may own or have interest in
- Personal injury payments
- Redundancy payments
- Superannuation (although de-facto couples in WA can not split super)
- Shares and Investments including cryptocurrencies
- Life insurance
- Trust assets
- Liabilities (debts) including mortgages, loans, credit card debts etc.
Not Sure What To Do Next?Free Discussion
The family law team at MKI Legal can assist you with any questions about your family law matter, separation, splitting your assets or your children. We can help you make the right decision on what to do next.