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Ex-Husband Delaying Property Settlement?

In assisting you with a Property Settlement, we always begin the story with you. 🫵

If you are a couple who has separated, and want to move forward with your life, dividing your property should be simple and straightforward.

On many occasions, this is not the case, and how your property, which may include superannuation, is divided can be the biggest problem or hurdle to overcome. 

That’s where we at Your Online Property Settlement come into the story. 

YOPS was created to provide an online end to end law firm.

We are dedicated solely to assisting parties to properly and fully document their property division.

This includes superannuation, safely, and from the comfort of their own home. 

Our team has assisted thousands of couples and individuals in obtaining their divorce so they can move forward with their lives.

wheel-hannah-pink

Our team can also assist in the division of property upon marital and de facto separation. 

Keep reading 👀 to find out how we can assist and what can be done where one party is delaying property settlement.  

 

🤔 What is a Property Settlement?🏡

A property settlement is the division of assets between a couple, married or de facto, who have separated and wish to divide their assets in a fair manner. 

A property settlement differs from a divorce which is the legal ending of the marriage. 

A property settlement can occur at any time after separation whether that is 1 day or 10 years later.

There are sometimes reasons for delaying a property settlement, for example when the parties need to dispose of a business that they jointly own or run.  

Property settlement is different matter to arranging a parenting agreement with respect to the children.

Whilst children’s arrangements are sometimes documented at the same time as a property settlement this does not have to be the case and you can document one matter separate to the other. 

 

What is included in a property settlement?

A property settlement divides the assets of the parties.  

What are the assets? 

The assets to be divided in a property settlement refers to all of the assets and liabilities of the parties at the time that the agreement is reached.

This includes superannuation, held by one or both parties, and all other assets.

Such as real estate 🏡

Motor vehicles 🏎️

Shares 📈

Cash 💰

and Businesses 🏢

Of course, any liabilities or debts owing by the parties must be taken into account.

This can include mortgages, credit cards and personal loans, car loans, and even on some occasions a HECS debt. 

We are frequently asked whether property should be valued at the date of separation, or at the date an agreement is reached. 

The correct answer is at the date the agreement is reached.

Why?

It is because assets change in value from separation.

For example, a car usually goes down in value.

A house may go up or down in value significantly, and available cash levels in the bank at separation change.  

We are often asked, ‘but what happens if I build up assets after separation?’

The answer is that the court can take this into account and may allow you to keep separate the increase in the value of an asset that you have saved for.

This will depend on the circumstances, and whether for example, there is a significant earnings difference between the parties, which allowed one person to improve their financial position, post separation, to the detriment of the other.  

We always make a suggestion that separated couples should make a list of all of their assets and liabilities and obtain up-to-date details of superannuation values prior to looking to commence property settlement discussions. 

 

What are our suggestions to get a property settlement moving? 

In trying to reach an agreement upon the orderly and fair division of assets we always suggest that if the parties can reach a fair agreement themselves that is the best way to go.

This means that each party has some control over the final outcome rather than the alternative being an expensive litigated matter where a judge will determine what will happen. 

We previously noted that a good suggestion is to obtain a list of all of the assets and liabilities, and make sure both parties agree on the value.

A tip – a minor difference for example in a car value would not matter.

The next step is to then look at how those assets were created or acquired – in other words, were there any special contributions made only by one party along the way that increased or decreased the value of the asset pool.

Case Study

Greg and Mary were married for 10 years and have one child.

When they got together in their early 30s, Greg had received an inheritance from his late parents and had bought himself a house which was worth approximately $500,000 when they got together.

Mary owned a car and had about $50,000 in the bank.

During the marriage, both of Mary’s parents passed away and she also received an inheritance of about $150,000

They decided to co-parent their child after separation, and both of them have an equal earning capacity.

Because their relationship was 10 years in length, it may be appropriate to make an allowance that Greg’s financial contribution of the house at the beginning of the relationship was significant and they should allow for some financial adjustment between them.

They decide that Greg will receive 55% of the total assets because of the extra contribution made by him at the beginning of the relationship.  

So how to get a property settlement moving? 

We like to make the initial suggestion that the parties try and communicate directly between themselves.

If there is some difficulty arranging this, then a third party such as a mutual friend can assist in arranging and supervising that conversation either in person or online. 

A much more common alternative available now is to have the conversation about asset division assisted by an independent third-party.

This third party is usually known  as a mediator.

Many mediators have experience with family law disputes or even a legal degree and can assist on an independent basis in identifying the issues between the parties so that they can reach an agreement.

In more complex financial matters, it is sometimes appropriate for each spouse to at least obtain preliminary legal advice as to an estimate of the likely property division if the court was to look at the matter so that you can then have that advice in your mind when you attend that mediation.  

 

Couple in mediation
Couple in mediation sorting out property settlement.

 

Mediation is now a requirement as part of any court process. Having a mediation relatively early, can save significant money compared to a court disputed matter. It is important, however, to look at accurately identifying all of the assets to be divided. 

If direct discussions or a mediation is not successful, then usually one party or the other will engage a solicitor to write to their former spouse encouraging a negotiated property settlement.

Once again, it is only if those negotiations fail that there would be a need to consider going to court for a property settlement outcome.

Even if a party has commenced property settlement proceedings in a court, probably less than 5% of those matters will ultimately be determined by a judge at a trial.

Usually the parties will reach an agreement somewhere along the way – unfortunately, often at some significant legal expense to both sides.  

 You can see why the team at YOPS look to assist in reaching an early agreement to help couples save the hard-earned money they have built up over the years. 

Your Online Legal Group Staff
Your Online Legal Group Staff Helping

What happens when a property settlement agreement is reached? 

It is important when a property settlement agreement is reached that it is documented in a written form for two main reasons. 

 The first reason is that it creates finality between the parties so that in the future one party can’t come back and ask for further funds.

This could happen when one party receives a fresh windfall such as an inheritance or lotto win after separation. 

The other main reason is that there are significant stamp duty savings, if a written agreement in proper form is prepared.

Stamp duty can still arise in many States, where, for example the parties own a home jointly, and wish to transfer that home to one or other of them in exchange for a cash payment.

In essence, the one party is acquiring, the other parties half share and stamp duty is normally payable unless it is made exempt because a property settlement Order is put in place.  

 Somewhat confusingly, the court allows a documented agreement to be done in two ways.

One is called a binding financial agreement or BFA which is a written agreement, a little bit like a contract, which is signed off by each party with independent legal advice.

The BFA indicates that both parties have agreed to their separate amounts to be received.  

The other alternative is filing an application with the court setting out the agreement reached.

This is called an Application for Consent Orders , and it is lodged with the actual final agreement itself.

This document can be lodged without both parties having independent legal advice.

However the court will only make the final agreement if it is satisfied that the agreement reached is just and equitable, or in other words, fair. 

Once, either a BFA is signed, or a court order is made, then the transfer of assets which are agreed to be divided or transferred can occur.

Sometimes parties have already divided some of the assets but importantly  assets such as real estate should only be transferred after the orders are made so the stamp duty exemptions can be applied. 

How can YOPS assist you in a property settlement? 

The team at YOPS have created their online service to allow for a resolution of property matters to be resolved and documented in one of two ways, which are:

1️⃣ Where agreement has been reached by the parties, YOPS then documents that agreement by way of consent orders to be lodged with a court.

Following that, YOPS can then arrange any property transfer with the assistance of specialist property lawyers; or 

2️⃣ Where parties believe they can reach an agreement without significant conflict, YOPS then undertakes a referral service to a mediator who is appropriately qualified to help them reach a resolution.

If that agreement is reached, then YOPS will prepare the necessary court order so that the parties can have certainty moving forward and arrange any necessary property transfers. 

 So, what if my ex-partner is delaying a property settlement? 

Not Signing Paperwork?
Ex Spouse not signing paperwork for property settlement?

Whether it be the former husband, wife, or de facto spouse, if one party, refuses to discuss or negotiate a property settlement then we suggest the above process be followed.

That is, firstly determine if they will sit down in a conference with you and a third-party to discuss property settlement.

If not, or there is too much conflict, then determine if they will attend a mediation – this does not have to be face-to-face, but can be conducted online with a mediator going between the parties to discuss reaching a property agreement.

If the former spouse refuses to participate in a mediation, then unfortunately, it is usually necessary for one party to approach a solicitor to obtain advice about writing to the non-complying party to try and get the settlement moving to reach an agreement without commencing a court process.

It should only be a last resort that a court process be undertaken and we strongly advise against an overly aggressive approach – our years of experience tell us this can be expensive, emotionally draining, and ultimately counterproductive. 

 

Why use Your Online Property Settlement? 

YOPS  allows you to complete a simple online form from the comfort of your home, and then allows you to choose the level of assistance needed – from partly DIY to a complete end to end property settlement document preparation service.

The court orders prepared by us, accurately record the property, including superannuation, to be divided, so separated, married or de facto couples can move forward with confidence. 

Your Online Property Settlement Staff member working with Client
Your Online Property Staff

We can provide this service generally at a far lower cost than consulting with your local solicitor because YOPS is wholly online and has fine tuned processes from many years of experience in preparing the paperwork needed.

So you can have confidence in the service provided.  

Being unsure about dividing your property, including superannuation, should not hold you back from moving forward with your life.

Getting your former spouse on board with the process without the threat of court is critical, and we are able to assist in this regard.

If you need to obtain further details or information about the division of property, then you can contact us: – 

By email: help@propertysettlementonline.com.au or visit our website

www.propertysettlementonline.com.au where you can complete our online application and we will contact you at no financial obligation to discuss your individual circumstances. 

Best wishes from the Team at Your Online Property Settlement. 

Geoff & Maria. Founders of Your Online Legal