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Negotiating Settlements With Property & Children

May 4, 2023

Many couples can successfully negotiate the division of their assets and care of their children without legal intervention, but those who can’t, should read this article.

Property Settlements

The Courts generally adopt a four step approach to dividing matrimonial assets:-

Identifying and Valuing Matrimonial Assets, Liabilities and financial resources (a financial resource could be a income producing business, distributions from a trust fund etc.).

If you cannot agree on the value of the assets, liabilities and financial resources in the “asset pool” then an expert will be appointed to value the disputed asset.  The expert’s costs will usually be paid equally by both parties, but a party who holds a stronger financial position may be ordered to pay at first instance and be reimbursed at settlement.  In certain circumstances assets can be excluded from the pool, e.g. you owned an asset before you met your spouse; your spouse did not contribute to it during the relationship; and it was never mixed with your “matrimonial assets”, that asset may be excluded.

Identifying and Assessing the contributions of the parties.

Contributions include non financial contributions as well as financial contributions. Financial contributions can be mortgage repayments, or the purchase of raw materials to maintain or improve the matrimonial home. Non financial contribution can be the non-paid labour of one of the parties in maintaining or improving the matrimonial home. Non financial contributions also incorporate ordinary domestic chores such as cleaning, vacuuming, washing, ironing etc.

What future circumstances might influence the Court in deciding how to divide the matrimonial assets?

If a party is in a financially disadvantaged position at the time of separation, then a financial adjustment will be made in their favour to counteract that imbalance. For example, a party who earns substantially less than the other party, will receive a financial adjustment in their favour, which effectively gives a party more of the asset pool than they would otherwise have received, if not for that financial disparity.  A party who is significantly older than the other party will likely receive a financial adjustment in their favour, as they closer to retirement age and have less opportunity to earn an income.  There are many other examples of how adjustments might be made in one party’s favour because they are find themselves in a position of disadvantage.

In all the circumstances is making an Order just and equitable?

Where the Court has evidence that the parties have lived separate financial lives, the Court might choose not make any Orders. This is more common in short relationships where the parties are yet to “pool” their assets, but holds true for longer relationships where assets have been “quarantined”. Where assets are held jointly, or both parties make contributions to an asset that is held by one party, the Court will likely determine that it is just and equitable to make an Order altering the property interests of the parties.

Children

A legal presumption exists that both parents have equal and shared parental responsibility for their children.  Equal and shared parental responsibility means that both parents should equally make decisions about major long-term issues, such as schooling, religion and medical treatment jointly.  Equal and shared parental responsibility does not mean that the child/children should spend equal time with each parent.  The presumption does not apply in situations where one of the parties has perpetrated family violence against the other party, or on the children of the relationship.

A crucial concept in all matters relating to children is that of “the children’s best interests”.  This phrase incorporates several “legal considerations”, but the central theme addressing each one of these considerations is, “What is in the child or children’s best interests?”  It is in the children’s best interests that they be protected from harm and if one parent is the cause of that, then the children should be protected from that.  This can be achieved by implementing supervised visits until the offending parent’s behaviour is remedied.  There is no succinct step by step approach when it comes to children’s matters and the Court carefully examines the circumstances of each case to ensure the children’s best interests are always promoted.

At The Legal House, we have several legal representatives who are able to assist in resolving your family law matters and where you cannot agree on how to divide the matrimonial assets, or have concerns about your children’s well being, you should always seek legal advice.

Nick Harrison

Nick Harrison

Founder & Solicitor

Nick is passionate about family law, domestic violence, and wills and estates, Nick has been practising as a Solicitor of the Supreme Court of Queensland and the High Court of Australia since 2012.  He provides practical legal advice to his clients, using his unique blend of impeccable legal skills and real-life experience as a police officer, husband and father.

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