If you are in a marriage or de-facto relationship that is now untenable and you feel that enough is enough, please ensure you seek sound legal advice as soon as possible, ideally before ‘making the break’ , but in any event to ensure you are empowered with as much information as possible regarding your legal rights, entitlements and obligations.
The process of separation, divorce and property settlement can be emotionally exhausting. It is noted as being one of life’s most challenging experiences, even for the most brave and strong, regardless of age or gender. If you have made the decision to embark on this path we can assist you through the process of separation to divorce to negotiating a property settlement. These are three very different stages and they can be undertaken in different order, however property settlements must be undertaken 12 months from the date of divorce, and 24 months from date of separation if you are/were in a de-facto marriage.
With regards to the topic of property settlements, this can be quite an overwhelming and daunting process as often marital assets (whether you know them to be marital assets or not), can be tied up and or intertwined in very complex asset and business structures which, without sophisticated commercial advice, can be hard to identity and or clawback into the asset pool to ensure a true asset pool valuation, and a fair division of those assets accordingly.
Likewise, there might be some assets that you believe should be excluded from that asset pool, and having that knowledge is equally important. To comprehend these structures and to truly empower yourself with really understanding your financial status within the relationship, (including associated business structures), the best way forward is to get proper, clear and objective advice. This advice will also become vital with how you structure your financial affairs and plan for your future moving forward.
Amongst many challenges along the path to a division of assets, is that the Courts mandate that property settlements require you and your spouse to participate in a form of dispute resolution process (mediation), in an endeavour to come to a compromise or agreement re property entitlements.
If your chosen form of mediation is not successful only then you can commence proceedings with the Family Court seeking formal property settlement orders, (there are some exceptions, for instance if domestic violence is an issue). Please also be mindful that before the Court makes any determination of your matter you will be required to make full and frank disclosure of all your assets and income streams and then still be required to participate in further mediation processes.
To be able to achieve the best possible result from a mediation, knowledge of your finances, (personal, family and business), is vital. Being able to understand complex corporate structures and the laws around that is vital. Be aware that you should not mediate without a clear and documented picture of assets on both sides.
In a situation where one party attempts to obstruct or mislead the other as to a full and frank documentation of assets, it is imperative that you have legal advisors capable of a forensic analysis of those assets. It can put you at a serious disadvantage to mediate when you are not fully informed of what you are mediating about. Never go to mediation until you have the documented facts regarding the asset pool, then go in with the full knowledge of what it is you are dividing, and what it is you seek to protect. Some assets will hold more significance to one spouse than another, it is important to know that too.
At the end of the day settlement is always preferable to litigation, but settlement cannot be successful when negotiated in the dark. Know what you have, what you are entitled to, what you would like to achieve … and then negotiate.
We are highly experienced in areas of Family Law as well as having a strong foundation in corporate structures, trusts and asset protection structures . These strengths coupled together are critical to a successful division of property and key to securing you a stronger and more certain financial future.
Koffels carry out the practice of Family Law supported by a base as a corporate/ commercial firm, including cross-border capabilities. Call us, we will be happy to discuss the issues you face, and provide support for the challenge ahead.