What is required to give effect to settlement of property and financial matters? Is there one better option?

16/07/2014

What is required to give effect to settlement of property and financial matters? Is there one better option?

In determining a person’s entitlement to property division, one of the first issues that will need to be properly dealt with is identification of the pool of property which is available for distribution.

Property can include real estate, bank accounts, shares and debentures but may also include superannuation and interests in companies or businesses. One of the issues with which our solicitors are very familiar is the valuation process when company and interests in Trusts and Family Trust are available for distribution. In many circumstances, where a company business or Trust is involved, the husband and wife may not known the extent of the assets and for that matter, the extent of liabilities. The Family Court of Australia has set out Rules for appointment of Single Expert Valuers to determine these questions. Careful consideration of these issues of commencement of property division is essential. Our solicitors are trained to make these decisions.

There are various structures for property settlement and documentation of the settlement. The documentation and structure will depend on the circumstances in each case and the needs of the parties. For example, the age, welfare, income, whether there are children. There is a requirement for a formalisation of an agreement by way of Court Order or Binding Financial Agreement. If there is just a mere agreement between the parties then that agreement is fundamentally non-binding and the other party may then wish to proceed on the basis that the informal agreement is not binding on the parties. Even if there are Court Orders or a Binding Financial Agreement, there are circumstances in which those agreements and Orders set out are able to be challenged.

Our solicitors will be able to advise in relation to the structure of your property settlement and the documents necessary to properly achieve settlement to ensure that there are no future claims against you by your former spouse and no further claims against your estate. There are different options available for documentation of settlement some of which involve Court and others which do not involve attendance at Court. Our solicitors can advise you in relation as to what structure would be best for you and best for protection of your interest.

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