Division of Property Upon Separation
When spouses/partners separate, discussion needs to take place as to how property should be divided. If you and your spouse/partner lived together for three years or more, all assets and liabilities which have been acquired during your relationship will in most cases be joint property which each of you have an equal share in. You will need to complete a Relationship Property Agreement to confirm how the property is going to be divided. In order to minimise costs, you should try to negotiate directly with your former spouse/partner as to division of property or, failing that, we are able to negotiate on your behalf. Once an agreement is reached, it will be recorded in a Relationship Property Agreement. You and your former spouse/partner will each need to instruct your own lawyers who will need to ensure appropriate valuation evidence as to each asset and liability being dealt with in the Relationship Property Agreement is obtained.
Relationship property matters are becoming increasingly more complex as a result of the prevalence of Family Trusts (often the owner of the relationship home) and complex business structures as well as an increasing number of circumstances in which parties own property in off shore jurisdictions. Turner Hopkins has considerable experience in assisting clients in these more complex relationship property scenarios.
There is also an important exception to the general rule of equal sharing entitled “economic disparity”. An economic disparity claim arises where the income and living standards of one spouse/partner upon separation is significantly higher than that of the other spouse/partner and this state of affairs has come about because of how the functions were divided during the relationship. The most common situation where an economic disparity claim arises is where one spouse/partner has stayed at home to maintain the household and/or care for children whilst the other spouse/partner has continued working. If an economic disparity claim is successful, the claimant will be entitled to a greater than 50% share of the pool of relationship property.
If you and your spouse/partner lived together for less than three years, you will each retain your own property in your own names. It is still advisable to complete a Relationship Property Agreement to ensure your former spouse/partner cannot make any claim to your property in the future.
The costs involved in resolving relationship property matters vary widely based on the circumstances, the complexity of the parties’ financial arrangements and the degree to which parties can co-operate and agree. In the simplest of cases relationship property disputes can be resolved through the parties instructing their lawyers as to the agreements that they have reached and a simple Relationship Property Agreement can be prepared. In such cases it is possible for relationship property matters to be resolved for a relatively modest cost, often under $2,000 plus GST and disbursements. If the parties are acrimonious and there are contested issues to resolve, the costs can increase significantly.
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