How to pick the right property settlement lawyer?
You should look for the following characteristics:
- Ideally they should have a corporate or commercial background. This is invaluable in knowing where to look for assets, assessing their value and advising you on the commercial reality of your matter.
- They should be able to simplify the process for you. A lawyer may know everything there is to know about the law, but it means very little if they can’t explain it to you in plain English, walk you through the process and allow you to make the right decisions.
- They have taken the time to understand you and your matter. Each case is different and each client is different. Picking up on a minor detail can often lead to a significant difference in the outcome.
- They should be straight forward. Your lawyer should have a clear plan and confidence in their approach. If they are dodging questions or beating around the bush, it’s an early sign that your matter may drag on for much longer than it needs to.
We are confident that our lawyers tick the above boxes, but we prefer and recommend that you make your own assessment. You just need to get in touch.
Separated or thinking of separating?
If you have separated from your partner, you need to consider what is going to happen to the property that the both of you own. This applies whether you were married, or have been in a de facto relationship.
The best outcome is an early outcome. Leaving the Court out of the equation will mean lower costs, less stress and more certainty. Financial and property settlements reached amicably by former partners can still be binding on the parties. Should you have a lawyer? YES. The last thing you want is to reach an agreement with your partner, thinking you have put things to bed, only for the issues to be rehashed a few months or a few years later because the agreement was not enforceable. The right lawyer can help you reach the same outcome and help give you the comfort of knowing that the agreement is binding and enforceable.
Can’t reach an agreement?
If an amicable resolution is not on the cards at present, filing an application for a property settlement with the Family Court, the Federal Circuit Court or other competent court will be necessary. The Family Court generally deals with the more complex matters.
Just because an application is filed in Court, it does not mean that the opportunity to reach an agreement is lost. A good lawyer will make the most of Court appearances to speak with the other side and explore settlement opportunities.
How does the Court process work?
An application filed with the Court will be given a listing at a future date generally a month or so after the date of filing.
On the first listing date it is expected that the Court, in consultation with the parties, will then make orders for the progression of the matter.
If there are urgent matters to be dealt with, or the parties can’t agree on who has control of certain assets in the meantime, an application-in-a-case can be filed seeking interim orders from the Court. Interim orders can be important, particularly given that Court proceedings may drag out over an extended period of time.
As part of progressing the matter, the parties will at some stage be required to prepare and provide to the Court:
- A joint balance sheet, setting out what each party asserts are the assets of the marriage and their value;
- Financial statements, setting out their current financial position including any income, debts, assets and liabilities;
- If the value of any assets are disputed, valuations will need to be obtained from appropriately qualified people;
- Their evidence in the matter, which support the orders that you are seeking from the Court.
When all of the interim and administrative matters have been dealt with, the Court will list the matter for final hearing.
What is involved in a final hearing?
The final hearing usually pans out as follows:
- The parties deal with any preliminary issues such as non-compliance with previous court orders, subpoenas issued and financial disclosure or any applications sought to be made;
- The parties will then seek to rely on their evidence. Evidence needs to be in an admissible form. There is likely to be some argument here regarding objections to parts of the evidence – if the judge or magistrate accepts the objection, that part of the evidence can’t be relied on;
- After this, the Applicant will then be called for cross-examination. This is the part where the opposing side get to ask you questions about your evidence.
- Once the applicant is finished with cross-examination, their other witnesses will follow until all witnesses required for cross-examination are finished.
- The Respondent will then be cross-examined, followed by its witnesses.
- Once cross-examination has concluded, the parties then start with their final submissions to the Court as to what orders should be made and the reasons why (in light of the evidence).
Does the Judge or Magistrate make a decision immediately?
Unlikely. Over the course of a final hearing, there is a large amount of evidence that is covered and various documents referred to. The Judge or Magistrate will need to review all of the evidence, consider the law and prepare a judgment. This process may take anywhere from a couple of weeks, to a number of months.
What happens when the Judge or Magistrate makes a decision?
The decision will include orders as to who is entitled to what and the process by which a finalisation of the separation of assets is to take place. This may include one party making a payment to the other, the selling of assets and/or the discharging of liabilities.
Have any questions?
Get in touch 🙂