An out of Court settlement is as close to ideal as you can get in Family Law matters. It is often the quicker, cheaper and mentally healthier way of dividing property. There are several ways consent can be achieved, by:
1. Private negotiations between you and your partner (without the involvement of solicitors);
2. Negotiations between your solicitor and your partner’s solicitor (generally by way of written correspondence);
3. A round table conference, where you and your partner (and your respective solicitors) sit down to negotiate the settlement; and
4. Alternative Dispute Resolution, including:
1. Mediation where you and your partner (and your solicitors, if requested) attempt to negotiate a settlement with the assistance of a mediator who is FDR practitioner; and
2. Arbitration, this is a much more formal version of mediation. You and your partner agree to be bound by the decision of the arbitrator (generally a Barrister or retired judge) who will only make a decision if you and your partner cannot reach an agreement amicably. The television show ‘Judge Judy’ is arbitration and the parties who appear on the show have agreed to be bound by Judge Judy’s decision.
Irrespective of the method that is utilised to facilitate an agreement outside of Court, the settlement that you and your partner agree upon must comply with the Family Law Act (Cth) 1975. Specifically, that the following have been considered and dealt with appropriately:
1. Asset Pool: the entirety of the asset pool has been attributed a value (either by way of valuation or by agreement) and that no assets, liabilities or financial resources have been excluded;
2. Each person’s contributions to the asset pool have been considered. Contributions are not just financial contributions (i.e. income, inheritance, gifts from parents, and compensation payouts) but also non-financial (including renovations done yourself and working in a business without drawing a wage) and contributions as a parent and homemaker;
3. Any future needs either you or your partner may have, has been considered and dealt with appropriately. Future needs includes, but is not limited to the care of minor children, the age and health of each person and their income earning capacity; and
4. That the overall effect of the property settlement is just and equitable in the circumstances. This includes considerations as to whether the property is being divided fairly and appropriately given each person’s circumstances.
Even if you and your partner are able to reach an agreement amicably, the assistance of a lawyer is still vital to ensure that your agreement will be acceptable to the Court. Any agreement you reach should be formalised by way of Court Order to ensure it is enforceable. A lawyer will also ensure that the agreement is recorded in an appropriate and admissible form.
If you and your partner cannot reach an agreement, or your partner does not want to negotiate, unfortunately there is no other option but to instigate Court proceedings to finalise the property matter. However, just because you have been required, by the actions of your partner, to instigate Court proceedings does not mean your matter must proceed all the way to a final hearing. You and your partner have the option to negotiate and settle the proceedings at any stage.
Should you require assistance with your family law matter please contact a member of our Family Law team on info@chris-byrne.com or 07 3012 6345 to arrange a confidential, obligation-free initial consultation.