Property Dispute Mediations

Property disputes can occur with divorce, or break down of relationships. Rather than the parties having to go to court to sort out finances and divide property after separation, property dispute mediation may resolve the issues much faster and less expensively.

Time limits exist when it comes to applying for property or maintenance orders:
• married couples have 1 year from the date of the divorce order coming into effect
• de facto couples have 2 years from the date of separation.
• If the marriage is declared void, the parties have 12 months from the date of the decree of nullity to apply for property or maintenance orders.

A property settlement can deal with property, certain financial resources, and debts of the parties in the relationship. If you and your partner have separated then it may be time to agree on property settlement and maintenance. If you feel safe, you and your ex can try to find an agreement on how you will divide your property. If agreement cannot be reached between yourselves then you may have to apply for court orders. Divorce is an entirely separate process from property and maintenance. Seek independent legal advice about all matters relating to property dispute resolution.

What is Property?
Property can include:
• real property, for example, houses and land
• businesses, companies or trusts,
• cars and vehicles, horse floats, caravans, motorbikes, trucks and boats
• superannuation, shares, financial products
• pets
• furniture and household items
• jewellery and other personal belongings
• cash.

What is Debt?
Debt can include:
• mortgages
• personal loans
• store credit
• car loans and leases
• credit cards
• taxes
• household bills.

The Attorney General provide more information at Separating with debt: a guide to your legal options

What is a Financial Resource
Financial resources are sources of financial support that is reasonably available to a person, such as:
• an interest in a discretionary trust
• an anticipated inheritance
• carried forward tax losses
• long service leave
• a future pension entitlement.

Financial resources are not property and can’t be divided during a property settlement. However, they can be taken into account in property settlements and interim spousal maintenance cases.

Who can negotiate Property Settlements?
Anyone who is married or in a de facto relationship can negotiate a property settlement. The process is the same in any type of relationship. Married couples can negotiate a property settlement, even if before a divorce application is filed.
A de facto relationship is a domestic relationship between two adults who live together as a couple and are not married or related to each other.
There are a number of different factors you can look at to determine whether you were in a de facto relationship, including:
• length of your relationship
• whether you and your ex-partner lived together, and if so, for how long
• financial arrangements between you and your ex-partner
• whether you and your ex-partner own property together
• how you cared for your children
• how other people saw your relationship.

You can negotiate a property settlement with your ex-partner partner where:
• you were in a relationship for least 2 years
• you have a child together
• your relationship is or was registered under a prescribed law of a State or Territory, or
• one or both parties have made substantial contributions which would lead to serious injustice if any order was not made.

You must also have a geographical link to the Courts jurisdiction. This means you and your ex-partner:
• currently live in Australia, or
• were living in Australia when your relationship broke down.

Why Mediate
Mediation can provide advantaged in property settlements by helping parties reach agreements that are:
• Low cost
• quick
• convenient
• voluntary
• confidential

If you are seeking community mediation services, please contact us so that we can provide a no cost, no obligation initial consultation.
The Steps are as follows:

Step One – Call and talk to us. We will discuss the mediation process, and ask you some questions about your dispute. This will assist us decide whether mediation is suitable for you. This is no cost to you.

Step Two – Remember that mediations are voluntary. This means we need both parties’ consent to mediate. After the initial consultation we need to have an intake session with you to ensure agreements to participate in mediation. We will then set a convenient time, date, and venue for the mediation.

Step Three – The parties to the dispute meet with one or two of our mediators. Our mediators will explain the mediation process, and will allow each party opportunity to outline any issues without being interrupted. Our mediators allow all parties to raise and discuss the issues that are important to them, and then assist you generate different options for resolving the dispute. During the mediation our mediators will meet with each party in private as well so that you can be assured that our mediators will endeavour to make certain you have been heard. This is also a time for all parties to contemplate reaching an agreement and what that agreement might look like. Generally, only a single mediation is required to resolve your issues; however, for complex matters, it may require a second session which we will arrange with the parties.

Step Four – If the parties do reach consent, then our mediators will assist with the documenting of your agreements. In about 80 per cent of mediations, an agreement can be reached. Mediation provides an informal and safe environment where parties can feel more comfortable and resolve their differences without court.

Deciding what property to divide?
Deciding what property is to be divided means that the parties are expected to make disclosures about financial matters. There is a duty for the parties to provide each other with all documents and information about income, debts, assets, and financial resources. This includes both total direct and indirect finances. The duty extends to disclosing all assets and debts in your name, or held by someone on your behalf include companies, trusts, or other financial structures. You must also disclose assets you disposed of in the year immediately before separation and since separation, that may affect, defeat, or deplete a claim.

If you don’t comply with your duty, a court can:
• set aside your consent orders
• refuse to allow you to use information or documents you didn’t disclose as evidence to support your case
• adjust the property settlement in favour of your ex-partner, if they have provided full disclosure
• stay or dismiss all or part of your case
• make a costs order against you
• fine you
• send you to gaol.
See Checklist: Financial disclosure documents and information and Duty of disclosure on the Federal Circuit and Family Court of Australia website.

What will I get?
There is no set method for dividing property. What you receive is either agreed between the parties or the court will use its formal processes for determining percentages of net assets that you receive.

The process involves considering what the asset pool is and assigning a value to the assets. Then, the process involves assessing the contributions of the parties. There are three types of contributions:
• direct and indirect financial contributions, (E.g., wages or salaries, inheritances)
• direct and indirect non-financial contributions (E.g., unpaid contributions like working the family business
• homemaker and caregiver contributions.

Then, the process involves adjustments for future needs of you and your ex-partner including:
• age and health
• income, property, and financial resources
• the parties’ earning capacity
• care for your children
• child support.

To find out what you might be entitled to in a property settlement without involved your ex-partner, you should:
• obtain advice from a lawyer, or
• Use the amicaone website.

Reaching Agreement?
If you and your ex-partner agree on the way in which you will divide your assets then it is not necessary to mediate or go to court. You can keep your agreement informal or you can make a binding financial agreement. If you wish you agreement to be court orders then you can apply for consent orders.

An informal agreement can be written or verbal. There are no formal rules in making an informal agreement. If you would like an informal agreement, then you should put it in writing to avoid ambiguities. This will help avoid misunderstandings and disputes about the terms of your agreement. You don’t go to court for an informal agreement; hence, the agreement is not legally enforceable.

A binding financial agreement (BFA) is an agreement that sets out how the parties divide the property after separation. It is also known as a pre-nuptial agreement or cohabitation agreement. Before you can make a BFA, you must get independent legal advice about the nature and consequences of the proposed agreement. For a BFA to be legally valid it must be:
• in writing
• signed by both parties after they have both received independent legal advice, and
• an agreement that includes a certificate from each party’s lawyer certifying the parties obtained legal advice.

Although you do not need to go to court for a BFA, it is legally enforceable.

Consent orders are orders made by the court. Court orders will reflect the terms of the agreement about property and maintenance, and are legally binding. You can apply to the Federal Circuit and Family Court of Australia or Local Court of NSW for consent orders. Before you apply for consent orders, you should get legal advice. Property and Financial Agreements and Consent Orders – What You Need To Know.