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My partner and I are splitting up. What are the different ways we can divide the property we own together?
There are different options depending on whether you have been able to come to an agreement with your partner.
If you have been able to reach an agreement about how the assets and liabilities of your marriage or de facto relationship are to be divided, this is the preferred option to taking your matter to court. Such an agreement can either be an informal agreement or a formal agreement, such as consent orders or a binding financial agreement.
If you cannot reach an agreement with your ex-partner, dispute resolution is usually the next step. If this proves unsuccessful, then as a last resort you can commence proceedings in the Family Court of Western Australia.
How long do I have to sort out my property division with my ex?
In the case of married couples, there is a 12-month time limit from the date of divorce to apply for property and financial orders in the Family Court.
For de facto couples, the time limit is 2 years from the date of separation.
I have come to an agreement with my ex and we have drawn up an informal agreement that we have both signed. Is this enough?
If you and your partner have come to some sort of agreement about property division between yourselves, this is a great first start. In some circumstances, the parties are amicable and can make this arrangement work. However, in numerous cases something can go wrong.
For example, one person may change their mind about the informal agreement and decide to take the matter to court. In an informal agreement, neither party is bound by law to adhere to it. Accordingly, the best way to protect your interests both now and in the future is to convert this informal agreement into consent orders or a binding financial agreement.
My ex and I have reached an agreement that includes the transfer of property from one party to the other. Is there a way we can avoid expensive transfer duty?
If property is transferred pursuant to an informal agreement, you will be expected to pay the full amount of stamp duty, which is usually thousands of dollars. However, a transfer of land that occurs pursuant to either consent orders or a binding financial agreement will incur nominal stamp duty of $20.
What are consent orders?
Consent orders are a written agreement that must be approved by the Family Court of Western Australia. They are used when you have reached an agreement and want the court to turn it into formal orders, but don’t need the court to make the decisions for you. When the consent orders are approved and made, they have the same effect as any other court order made by the Family Court.
Before the court will approve your proposed consent orders, it will scrutinize them to make sure that they are just and equitable.To assess this, the court will look at contributions to the relationship made by both parties as well as each party’s current and future needs.
What is a binding financial agreement:
An alternative to consent orders is making a binding financial agreement (BFA).
The main difference between consent orders and BFAs is that BFAs are not filed at the Family Court of WA, and therefore do not need to be approved by the Family Court. Another difference is that there is a strict legal requirement for both parties to a BFA to obtain independent legal advice. In the case of consent orders, legal advice is recommended but certainly not compulsory.
With a BFA, each party’s lawyer is required to provide a certificate of independent legal advice, which is then annexed to the back of the BFA.
My ex and I cannot reach an agreement. What should I do next?
If you cannot come to an agreement with your partner, the next step is usually to go through dispute resolution. The main dispute resolution methods are negotiation and mediation, with arbitration and counselling being less commonly used. These methods can be helpful in assisting you reach an agreement. In fact, it is required that you attempt dispute resolution before you go to court, unless you are exempt because of exceptional circumstances such as fraud, urgency or family violence.
If you still cannot reach an agreement after attempting dispute resolution, your last resort is to apply to the Family Court of WA. Before you do this, it is a requirement that you provide a notice of intention to claim to your partner, which means informing them that you intend to take the matter to court if the parties are unable to reach an agreement.