Steps to Divide Assets After Separation

1. Identify Assets and Liabilities

Compile a list of all assets (property, vehicles, investments, savings, superannuation, etc.) and liabilities (mortgages, loans, debts).

2. Valuation of Assets

Determine the value of each asset and liability. Some assets may require professional valuation (e.g., real estate, businesses).

3. Classify Assets

Classify assets as either matrimonial or non-matrimonial. Matrimonial assets are those acquired during the marriage or relationship and are subject to division. Non-matrimonial assets include those acquired before the relationship, inheritances, or gifts received by one party.

4. Negotiation and Agreement

Ideally, negotiate directly with your spouse or through mediation to reach an agreement on how to divide the assets. Mediation can help facilitate discussions and reach a mutually acceptable outcome.

5. Formalize the Agreement

Once an agreement is reached, it should be formalized into a legally binding document. This can be done through:

• Consent Orders: Filed with the Family Court of Australia or the Federal Circuit Court. These are enforceable court orders that reflect your agreement.
• Binding Financial Agreement (BFA): A private agreement between parties without involving the court. Each party must obtain independent legal advice for a BFA to be binding.

6. Consider Tax Implications

Consult with a financial advisor or accountant to understand any tax implications of the asset division, especially for properties, investments, and superannuation.

Factors to Consider

1. Contributions: Financial and non-financial contributions made by each party during the relationship (e.g., income, homemaking, childcare) are considered.

2. Future Needs: The court (if applicable) considers factors such as age, health, earning capacity, care of children, and financial resources of each party moving forward.

3. Just and Equitable: The goal is to achieve a fair and equitable division of assets based on the circumstances of the case.

Legal Considerations

1. Legal Advice: It’s advisable for both parties to seek independent legal advice to understand their rights, obligations, and entitlements under Australian family law.

2. Court Intervention: If parties cannot agree, or if one party refuses to engage in negotiations, an application can be made to the Family Court or Federal Circuit Court for property orders. The court will then make decisions based on the evidence presented.

Suggestions

• Open Communication: Maintain respectful and open communication with your ex-spouse throughout the process.
• Documentation: Keep records of all assets, valuations, and communications related to the division of assets.
• Professional Assistance: Consider consulting with a family lawyer and, if needed, a financial advisor to ensure all aspects of the asset division are properly addressed.

Navigating the division of assets after separation can be complex and emotionally challenging. Seeking professional guidance can help ensure a smooth process and protect your interests.