WA How to Go About Property Settlement After Divorce?

Australia's #1 for Law
Join 150,000 Australians every month. Ask a question, respond to a question and better understand the law today!
FREE - Join Now

John_k

Member
3 June 2016
1
0
1
Hi

Thanks in advance for answering my question.

My partner has indicated that they want a separation and subsequently a divorce at some point. Given our situation, I know it will happen at some point.There are no restraining orders or violence or abuse.They just do not want to be married to me that's all.

To cut the long story short, we have 3 children, 2 properties that are 5 minutes away from each other - on foot, almost similar in value.

In the event that a separation and a divorce happens, how in this context are the properties going to be divided. As property settlement, I am in favour of having each person choose which property they want between the two and change the ownership and avoid unnecessary costs of courts, etc. This will make it easy to look after kids and shared custody of children.

However, in the case, the other party does not agree with this approach. How does the family court deal with a situation like this if it ends up there? We earn almost a similar amount of money in terms of salary and do not have any other assets except a few pieces of furniture.

Thanks
 

sammy01

Well-Known Member
27 September 2015
5,079
715
2,894
This website explains how court would go about it.
http://www.familycourt.gov.au/wps/w...ration/property-and-finances-after-separation

Short version is, courts look at each case differently but with a basic set of rules, but if you can sort it between yourselves that is great and will save lots of heartache. But for it to be legally binding, you will both have to get independent legal advice and have the agreement rubber stamped by the courts. It will also be reliant on banks being prepared to finance both parties if there is a mortgage on the properties....
 
  • Like
Reactions: Victoria S

Victoria S

Well-Known Member
9 April 2014
518
58
2,289
I agree @sammy01 , it's impossible to say what a court would decide, but if you can sort it out yourselves and get your agreement formalised in a binding financial agreement or court orders then they waive stamp duty for property transfers etc for situations like property settlements. As pointed out above though your bank will need to clear any mortgage discharges and refinances.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,344
1,003
2,894
Hey Sammy,

Just a note that independent legal advice is not mandatory.
 

sammy01

Well-Known Member
27 September 2015
5,079
715
2,894
I disagree. This matter is about property division. (On a side note - isn't it sad that parenting matter don't need any advice - legal or otherwise, but property / assets do?)

Read this

http://www.familycourt.gov.au/wps/w...inance/if-you-agree-about-property-and-money/

It says:

For a financial agreement to be legally binding, you must both have:
  • signed the agreement, and
  • received independent legal and financial advice before signing.
So Rod - look you are kind of right - independent legal advice isn't mandatory, but for an agreement to be legally enforceable, independent legal advice is required.
 

Rod

Lawyer
LawConnect (LawTap) Verified
27 May 2014
7,344
1,003
2,894
Hi Sammy,

I see that page does say what you said, and this is what is stated in the Family law act 1975 section 90G(1).

However section 90G(1A) gives the court the ability to make legally binding consent orders without independent legal representation. In practice though I don't know how often courts allow/don't allow consent orders if no independent legal advice has been obtained.