Negotiating Settlements

Negotiating Family Law Settlements:

The breakdown of a relationship, whether married or de facto, can be an emotionally draining time of your life. Most relationships will have property to consider as well as agreements on access to children spending time with each parent, which can be a lengthy and complex process.

Below is a guide to negotiating a settlement that both parties can agree to.

What is property?

Property is made up of both assets and liabilities that the relationship has acquired throughout its course. Assets can include any real estate, cars or boats, household effects and personal items as well as businesses and superannuation. Liabilities that also need to be divided include a mortgage, credit card debt and any hire purchase agreements. In Australia, it is important to note that any negotiations for division of property need to occur within 12 months of the divorce being finalised in a marriage situation or within two years of separation in a defacto situation.

What is considered a de facto relationship?

Under the Family Law Act, a relationship is considered de facto if any or more of the following conditions apply:

• Your de facto relationship lasted for at least 2 years
• You have a child with your de facto partner
• You have made a substantial contribution to the property or finances of your partner

If there are any disputes about whether or not the relationship you were in could be considered de facto, the court will look at a number of things to determine this such as the length of the relationship, the way the relationship was presented in public, your living arrangements, if the relationship was committed and whether you had or cared for children during that time.

What is the process?

The most basic process that most separations follow is identifying what is included in the property pool, negotiating the division and then formalising this agreement. While this may seem simple, there are many other factors that can complicate the process, so keep in mind that there are legal, financial and support services that are available along the way and obtaining legal advice could be necessary at some point.

If agreement is reached, then it is imperative to formalise the agreement. This can only be done by either a Financial Agreement under the Family Law Act or by requesting the relevant court to make a consent order in accordance with your agreement.

Children and Divorce

Before the court will grant a divorce, it needs to be satisfied that any children of the marriage are being adequately cared for. If the parties cannot reach an agreement, the court may make provision for the care of children with an interim custody hearing. This arrangement is not permanent, nor does it take into account all the details of the case.

Permanent arrangements for child custody are made at the final hearing. This hearing considers the case in more detail and determines the best care arrangements for the children.

What if we can’t reach an agreement?

If an agreement cannot be reached outside of court, you can run the risk of having a decision imposed on you by the court. Seeking legal counsel can help you to negotiate the best outcome and maintain civility throughout negotiations. Settling out of court could also mean a quicker and less time-consuming resolution which is important to consider, especially if there are children involved.