Financial Settlements
Why is it important to legally end your financial relationship with your ex?
Financial Freedom
Part of ending a relationship is the freedom to move on with your life and make your own decisions. In your new normal, you should be able to make financial decisions that suit you and your circumstances. The last thin you need is to be tied financially to your ex who’s financial choices may impact you and your own credit history and borrowing capacity.
Stopping any future financial claims
A financial settlement documented and approved by the Court is a step you can create to protect any future assets from your ex. Without a formal settlement, your ex can in certain circumstances seek a further financial settlement from you or your Estate if you pass away.
Your will
An important thing to do if you are planning to divorce, is to update your will. Once your divorce order is made, your old Will is no longer valid. So, we can help you with creating a new one. We do not recommend that you use a “kit” for making your Will. There are loads of reasons why, but the most important one is that you want to make sure that it is legally binding.
How?
Types of negotiation
Discussion between the two of you
If you have an amicable separation quite often couples can discuss and agree on a financial settlement. Once the agreement is reached, The Separation Place can help you by turning your agreement into a form of orders that the Court will approve.
Mediation
A Family Law Mediator is a professional trained in assisting separating couples work there way through all things finances! You have the choice of using a government funded Family Relationship Centre or a Private Mediator. Our client’s generally prefer a Private Mediator as the process can be started very quickly and a Mediation arranged within a month.
At Mediation parties can focus on their financial future and what that will look like for each of them.
Engaging a Private Mediator allows you to take your Family Lawyer with you to Mediation so you can have the support and on the spot legal advice about the options discussed during the Mediation. Sometimes it is also possible for the Agreement to be drafted by us during the Mediation saving you further time and money.
Collaborative Law
This is a process where the parties and their lawyers work together to reach an outcome. The partie and lawyers sign an agreement that prohibits those lawyers continuing to represent the parties if the matter does not reach an agreement and the parties file an application in Court.
The reason is to show commitment by all parties to reaching an agreement amicably. This process allows everyone to work together to reach the best outcome for both of you.
The benefit of the Collaborative method is that other professionals such as counsellors, financial advisors and accountants can be included to help with the tricky questions that the parties and lawyers do not have expertise in.
Parties and lawyers can discuss all sorts of things that are important to each family’s individual circumstances. Things like who will take children to and from training, who will pay certain accounts, who will keep the paperwork or arrange for repairs or other such things if a property is to be sold. These are all important things to you, but not really the focus of a Court.
How it works
The parties and their lawyers have a series of meetings, usually between 3 and 5 where the important things in relation to your financial future are discussed. Everyone is in the same room and receives legal advice from their lawyer in the presence of the other party and their lawyer. It seems a bit funny at first, however the liberating thing about it is that no one thinks anyone is being tricky or hiding anything.
Agreement
Financial agreements can be documented in two ways, via a Binding Financial Agreement or via Consent Orders made by the Court. The Case Law around Binding Financial Agreement shows that sometimes they are not as “binding” as the parties may have hoped, it is usually our advice to our clients to opt for Consent Orders.
No agreement
For financial disputes, you have the choice of where your dispute is heard. Either by an Arbitrator or a Judge.
Arbitration
So what disputes can a Family Law Arbitrator make decisions about?
- Family Law Property disputes
- Discrete issues, example, threshold issues such as existence of De Facto Relationship
- Agreements by consent – fast track your consent orders
What disputes can’t a Family Law Arbitrator make decisions about?
- Parenting disputes
Advantages of Arbitration over going to Court
- Your private Court Room
- Receive a decision about your Family Law Property dispute within 28 days of the final day of hearing or submissions.
- No time off for many many court appearances
- No publication of the final decision
- No long-drawn-out Court proceedings
- Hearings can take place as soon as the parties have their documents prepared and served (usually within 6 to 8 weeks)
- No longer wait 6 to 12 months for a judgement from a busy Family Law Judge
It’s all about Choice!
- You choose the Arbitrator
- You choose the time frame
- You choose the location and format (Video or in person)
So how does it work?
- Directions hearing – set the timetable, set the format of the hearing, decide a date for the hearing
- Compliance Check
- Exchange of tender bundles
- Hearing – via Video or in person
- Award delivered 28 days after final submissions
Judge
A judge can make decisions about both parenting and property disputes. Judge’s have long and very busy Court lists.
After you file an application with the Court seeking that a Judge determine a dispute between you both, you will be allocated a first return date, usually within 6 to 8 weeks. After that date, it may be 2 years or more before a Judge hears your case in full. There will be many mentions on the way where the Judge or a Registrar make “directions” for each of you to do certain things, but they won’t hear your evidence or argument for a long time.
Many of our client’s in the past have described living in this financial limbo as “hell”. They can’t buy or sell anything, they are paying bills for two houses on one income and they are struggling financially and emotionally.
Once the Judge has heard your case, it can take between 3 and 12 months for their final decision to be handed down, known as the “judgement”. Your potential time in Court can be up to 3 years.
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