September 2, 2019
How To Apply For A Property Settlement
We can all agree that separating can be a stressful time.
There's a lot that needs to be done and dividing your assets and debts is one of them.
In fact, doing a property settlement is one of the biggest and most complex tasks you may need to do when separating. It's also often one of the biggest financial decisions you'll make in your life.
That's why, in this article, we are going to take you briefly through how to get a property settlement:
What you apply for and what you do is very different based on whether or not you agree.
So let's get started with how to get a property settlement when you and your former spouse agree on how to split things.
Stage 1: How to get a property settlement when you agree on how to split things.
If you and your former spouse agree on how your assets and debts will be divided, then you have two options:
- 1You can formalise your agreement with a binding financial agreement; or
- 2You can apply to the Court for consent orders.
Binding financial agreement
A binding financial agreement is an agreement that sets out how you've agreed to separate all of your assets.
This does not go through the Courts. For that reason, each person must be independently represented by a separate lawyer.
There are also very strict rules around binding financial agreements, which I'll cover in more detail in another article.
Consent orders, on the other hand, involve applying to the Court for consent orders.
This involves three steps:
- 1Submit an application for consent orders.
- 2Submit the terms of the settlement. That is basically the orders you want the Court to make.
- 3Submit enough copies for all parties, so you and your former spouse, and the Court.
We have attached more information around consent orders below:
If you are seeking consent orders, it is highly recommend you obtain legal advice. This is so you understand the effect and consequences of the orders you propose and what is means to sign the statement of truth on the back of the application form.
Even though you don't need a lawyer for consent orders like you do for a binding financial agreement, it is still in your best interest to seek independent legal advice. This is because the application is lengthy, it's complex and it involves several steps.
Once the orders are made by the Court, they're final and binding and it's very, very difficult, if not near impossible, to have those orders removed.
Alternatively, if you wish to do a binding financial agreement, then you will need help from a lawyer. If this is something you wish to do, then give us a call on 1300 767 384.
We offer free, 15 minute phone consultations where you can ask any questions you may have. It'll also gives our qualified family lawyers an opportunity to give you further advice about your situation.
Stage 2: How to get a property settlement when you DON'T agree on how to split things.
If you and your former spouse do not agree on how to divide things, then you'll need to apply to the Court for a division of property.
This is where the Court makes a set of orders relating to the division of property, assets and debts. It can also include orders about spousal maintenance.
To apply for a property settlement in the Federal Circuit Court, you must prepare the following documents:
- 1Complete the initiating application.
The first thing you will need to do when you don't agree on how to split things is complete the initiating application.
This application will include 'interim orders' and 'final orders' which sets out the orders you want the Court to make.
Interim orders are what you want to happen in the meantime. For example, your former spouse makes fortnightly spousal maintenance payments to you until final orders on the property settlement are made.
Final orders, on the other hand, are the orders you want the Court to make on a final basis when this is all said and done.
- 2Complete the financial statement.
Second, you complete a financial statement. A financial statement is a document that sets out your financial circumstances. So your income, expenses, assets, liabilities, and your financial resources.
- 3Complete the affidavit.
Thirdly, you'll complete an affidavit. An affidavit sets out the facts that you are relying on. So the history of your relationship and contributions, your future needs.
Anything that you think is relevant that will support the orders that you are asking the Court to make.
- 4File all documents.
Once you've completed those three steps, you need to file (submit) all the documents in the Court.
You'll need to file enough copies for each person and for the Court.
You'll also need to pay a filing fee unless you're exempt from paying the fee. The fee will depend on whether you're seeking interim and final orders and whether you're including parenting orders with your property orders.
The fee will range from around $350 up to around $695.
We have attached more information surrounding what you must do before you submit your initiating application:
We have also attached a copy of the initiating application kit and a financial statement kit below:
If you are in a situation where you and your former spouse cannot reach an agreement on how to split things, then it's in your best interest to get some legal advice.
Going to Court involves a lot and it can be daunting.
You need to make sure the evidence that you put before the Court is completed properly or you could mess up your own prospects in Court. If things aren't done right, there can be serious consequences, which can leave you getting less than what's fair.
If you would like to chat to a lawyer about your situation, feel free to give call us on 1300 767 384. We offer free 15 minute phone consultations, so a qualified family lawyer will be able to give you some advice about your situation and answer any questions that you may have.
If you want to find out how much of the property pool you should get then watch our 4 part video series - "10 Minute Separation Split" that goes over how to determine your share of the property pool.