The Role Of The Family Lawyer: Putting The "Proper" Back Into Property Settlements


Family law matters can be stressful for all parties involved. Most family law matters are resolved through negotiation, so it is important that you are aware of your legal rights. This is where a family lawyer can help. A lawyer can assist you obtain the best outcome and prevent potentially ongoing and costly legal complications.
What is a property settlement?
This is the division of all “property” between married or de facto couples who seek divorce or separation. “Property” is quite widely interpreted in the family law system and includes pretty much everything that is capable of being owned. This can include land, houses, businesses including partnerships, motor vehicles, bank accounts, shares, household goods and furniture, tools of trade or other equipment, trusts and superannuation. The property settlement includes all property belonging to you and your partner, regardless of whose name the property is in.
Even if these items were owned by one of you prior to the start of the relationship, or they were left in a will to one of you, they may still form part of the “pool of assets”. Any debts also need to be calculated and taken into account in a property settlement.
Why do we need a lawyer when we have already agreed upon what property we will each receive?
Relying on an informal property settlement is quite risky as it may lead to you getting caught up in further property disputes down the track. For instance, there is a possibility you’re your partner will change his or her mind or even conceal something which should rightfully be in the agreement. Speak to us at LAC about formalising your agreement, so that you don’t get a nasty shock down the track.
Can’t we just skip the visit to the lawyer and go straight to court?
The courts can often assist with more complex disputes, such as how to equitably divide a monetary “gift” which was given to your partner by his or her parents.
However, going to court is not always the most pleasant way to reach a settlement. It may not guarantee the result you want and it can be costly both financially and emotionally. It is often simpler and cheaper to use your lawyer to help you reach an agreement with your partner outside of court, and go to court only as a last resort. By consulting a lawyer, you and your partner have the option of exchanging offers of settlement and conducting negotiations at any time.
Do we have to split everything equally?
All is fair in love and war, which doesn’t mean there will always be a 50:50 division of the property. The proportions will vary according to your personal circumstances.
A lawyer will assist you reach a property settlement by advising you and your partner’s legal entitlements over your joint pool of assets.
Firstly, a lawyer will advise you on the nature and amount of contributions made by you and your partner. These can be financial contributions such as wages, or non-financial contributions such as undertaking parental responsibilities.
Secondly, a lawyer will assist you determine the future needs of you and your partner. Factors taken into consideration include the duration of the relationship, the age and health of the parties, educational qualifications relevant to future work prospects and the need to care for any dependent children.
Once the analysis is completed, a lawyer may then assess any gaps in the information and conduct further investigation if necessary.
I think my partner is hiding assets, how can I investigate?
Relationships can bring out the best in people, but occasionally they can also bring out the worst. Asset hiding is quite common in the course of property settlements, especially when one partner adamantly believes that he or she has rightfully earned and thus owns a particular property interest.
If you suspect that your partner has assets, but you don’t have any details of them, a lawyer can also put sufficient pressure on your partner to meet his or her “full and frank disclosure” obligations, and will advise whether it will be necessary to resort to bringing an application before a court requesting a subpoena, which is a court order demanding production of documents or witness from a third party source. Speak to us at LAC lawyers to determine the most appropriate way of gaining access to your partner’s financial details.
Are we negotiating an emotional settlement or a property settlement?
In order to negotiate the most effective property settlement, lawyers must distance from the emotional issues that arise in family law disputes. However, a good family lawyer will listen empathetically to all your concerns and give objective advice as to your entitlements and legal obligations up until you reach your desired property settlement. At LAC lawyers, we can thoroughly assess your concerns and tailor your settlement negotiations according to your individual circumstances.

Frank Egan is the Chief Executive Officer of LAC Family Lawyer Sydney and has over 27 years of experience as a lawyer.

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