If you are going through the process of separation, your aim at the outset should be to end up in the 95% of Australians who settle out of court.

 

And, I mean by really staying out of court, not by being one of those couples who are counted as settling out of court but actually wasted several years and thousands of dollars in the Family Court System before finally deciding to stop pursuing the matter through court and settle on consent orders they could have reached months and thousands of dollars earlier.

 

How do you reach an agreement out of court?

By compromising!

Reaching an agreement with your former partner that keeps as much of your net wealth available to split as possible, will allow you both to move forward independently with the minimum of stress and conflict. Sometimes this can be done fairly quickly. Others may need to stagger their financial settlement to allow for benefits to be realised in tax, investment or market conditions. While it is desirable for you to reach a 'clean break' and move on relatively soon after you separate, consider that an initial division of assets with an ongoing joint venture for a period of time may be the best result for both of you. Be prepared to think out of the box to reach a solution that is going to be in your best interests long term.  

Property settlement, whilst an anxious time for most couples, shouldn't be an emotional decision. Don't let your emotions overrule your intellect.

Compromise will be required from both of you. As well as patience, good communication and, more than likely, several sessions of negotiation before you iron out an agreement.

 

Where do you start?

All good decisions are based on good information.

The Split Kit is the ultimate tool for helping you and your former partner to minimise stress, conflict and the costs associated with a divorce property split.

Designed and developed in Australia, we believe our simple, secure and affordable divorce management software may be the first of its kind in the world.

Once you've downloaded the software onto the security of your own hardware, it’s similar to filling in an online tax return. Screen by screen you are guided through the process of collecting all of the data that you need to complete negotiations. You can work with you former partner, or by yourself to collate the information. If you can’t manage to negotiate successfully without facilitation, the Summary of Separation Report will give your mediator or your lawyer an instant snapshot of all the data relevant to your circumstances without having to pay them their hourly professional rate to guide you through the discovery process.

It's pointless to pay an adviser to tell you what they need you to provide. Using the Split Kit saves you hundreds, if not thousands of dollars.

 

What should you know before you start?

Before you start trying to negotiate with your partner, you should understand what is relevant in family law and what a court would take into consideration when making a ruling on your matter. Then, aim to reach a result that is with the range of the court guidelines and works as well as it can for each of you.

One the important things you need to wrap your head around is that Australia has a 'no-fault' divorce philosophy. What that means is that the court is not interested in why your relationship broke down and in almost every instance, you will not be compensated in a property settlement for the bad behaviour of your former partner. If your partner had an affair, was lazy, undermined your self-confidence and even if they were moderately abusive, the court does not care. Please don't waste you time and your money trying to prove you are right and get a larger share of the property split. So often, what feels as though it should be relevant, just isn't in law. If you can come to terms with this, you will bring yourself so much closer to dissolving the practical aspects of your relationship, recovering and moving on to a happier you. 

Yes, that’s going to take compromise and considerable work to manage your emotions.

In Australia, the court will apply the FOUR STEP PROCESS to determine a property settlement. If you are reaching an agreement that you will subsequently lodge with the court as a consent order, the court will look at your agreement to make sure that it complies with what is considered fair and just before sealing the orders, so it is important that you understand and take these principles into account before you finalise your agreement.

1. Net asset pool of both parties

The net asset pool comprises the value of all the assets owned by either or both parties, less all the liabilities incurred.  It includes anything acquired before or during the marriage, as well as after separation.  

Superannuation is treated separately but included in the equation.

2. Contributions by both parties (financial and non-financial)

• financial contributions
• non-financial contributions (as a homemaker or primary carer of children, or renovations to homes or other properties)
• gifts, bonuses and inheritance
• initial contributions (assets attained before marriage)

In special circumstances, the court may also take into account an exceptional skill that one party has if that exceptional skill as been the primary source of wealth creation for the family.

3. Future Financial Needs

Some of the factors considered:

• Age and health
• Capacity to earn money (note capacity, not current earnings)
• The property and assets of each party ( matrimonial/family home, investment property, shares, cars, jewellery, savings, furniture and effects)
• New relationships (and new financial circumstances)
• Future parenting responsibilities, including the need to provide for children and the capacity of the parties to provide for those needs.

4. Is it ‘Just and Equitable’ to both parties?

The Court will consider the practical effect of the proposed property settlement, and whether it is ‘just and equitable’ taking into account all of the above factors. Please note that 'just and equitable' doesn't necessarily equate to equal shares.

 

Documenting your agreement

It is very important to document your agreement to make it legally binding. You can do this by filing a Consent Order with the court or by engaging lawyers and drawing up a legally binding agreement.

 

More about the Split Kit features

As well as collecting information about all of your assets, liabilities, household items, superannuation and personal situation, the Split Kit offers a module to help you work out what your living expenses will be going forward. You need this information to ensure that step 3 of the 4 step process is taken into consideration.

Correspondence register: Divorce can be admin intensive, The Split Kit contains a correspondence register to help you keep track by date, category, subject and recipients all of the letters, documents and emails you send as well as the phone calls you make.

There’s even a handy clock to keep tabs on how much time you spend on the phone to advisors which you can check against their bill when it arrives to make sure you haven’t been overcharged.

If you are in the unfortunate position of experiencing domestic violence, the Split Kit contains a comprehensive violence and abuse register which allows you to fully document your circumstances. You can attach any type of e-file to the record of the incident which allows you to build up a credible body of evidence.

 

How much does it cost?

If you sit in front of a lawyer while they explain the family law system to you and walk you through collecting all of the data they need to get started, you can easily run up a bill for 5-10 hours of professional time before they start offering advice specific to your circumstances.

The Split Kit costs $375  which is less than the cost of an hour with most family lawyers.

The price also includes a free copy of the 290 page resource book, The First Steps through Separation and Divorce.

Government fees for filing applications in court will also be applicable. Find more information about fees and costs here.

To find out more about The Split Kit and how it can help you, watch the video by below. It’s so simple we explain it in 90 seconds.

 

 

For more detailed explanation of the Split Kit, click here.

If you’d like to know more about the Split Kit, please leave your question below in the comments or contact me personally christine@divorceresource.com.au.

 

Read more:

What is a property Settlement?
What is included as property to be split?
Full and Frank Disclosure of assets and liabilities
Documenting agreements in family law: parenting plans, consent orders and binding financial agreements
The good the bad and the ugly of my day in Family Court
Contributions made after separation: Why quick settlements can be vital

 

Published by Christine Weston
Founding Director - Divorce Resource