If you are going through or considering a separation or divorce from your partner, you will likely be concerned about how your property is divided. Depending on the number of assets you have and whether these were obtained before, during or after the relationship, this can be a difficult exercise.
If you are able to reach an agreement with your partner, then you can seek to have this agreement formalised and made legally binding through apply for consent orders to be made in the Federal Circuit and Family Court of Australia (the Court). Alternatively, if you are unable to reach an agreement it may be necessary to apply to the court for financial orders to be made.
In the event you are unable to agree to consent orders and are required to pursue financial orders, there are a number of pre-action procedures that you are required to undertake before filing an application. These are set out in the Court’s pre-action procedure brochure available here. Further, the parties to an application for financial orders have a duty to make timely, full and frank disclosure of all information relevant to the issues in dispute. More information is available in the Court’s brochure available here.
Under the pre-action procedures for financial cases and in accordance with your general duty of disclosure, the parties must prepare and exchange:
- a schedule of assets, income and liabilities;
- a list of documents in the party’s possession or control that are relevant to the dispute; and
- a copy of any document required by the other party, identified by reference to the list of documents.
A failure to comply with the Court’s pre-action procedures or duty of disclosure may incur penalties, including being found in contempt of court, costs orders, and having all or part of the case dismissed.
It is important to note here that there are certain time limits for seeking consent orders or financial orders, namely that these must be applied for within:
- one year from the date of an annulment
- one year from the date of your final divorce order
- two years from the date a de facto relationship ended
Your lawyer will assist you in preparing a Financial Statement amongst other required supporting documentation to be filed with your application for financial orders, however to ensure that there is no delay in making an application there are a number of steps that you can undertake prior to engaging a lawyer to prepare for filing, and also to inform yourself of your personal and relationship assets. This includes compiling a record of the following documents to be provided to your lawyer:
- your three most recent tax returns and notices of assessment from the Australian Taxation Office;
- your most recent bank statements for the last 12 months;
- your three most recent payslips;
- a copy of your most recent superannuation statement;
- a list or details of property you own (real estate, securities, cryptocurrency, money in your bank accounts, vehicles, jewellery, etc);
- a list or details of your liabilities (loans, mortgages, your most recent credit card statements for the last 12 months);
- a list or details of any assets you have recently disposed of;
- if you have a business, the last four lodged business activity statements;
- if you have a partnership, trust or company, the three most recent financial statements and last four lodged business activity statements; and
- records of any other assets or financial resources you own or have an interest in.
Once you have obtained the above documents and provided them to your lawyer, they will be able to assess them to prepare your Financial Statement and other supporting documents, and sort those that need to be disclosed to your partner and those that do not. Your lawyer will also ensure that your partner complies with their duty to disclose their financial records, which they will review and assess in preparing financial orders to seek from the Court.
If you are considering separation or divorce and are concerned about a property settlement or require assistance with applying to the Court for consent orders or financial orders, please contact our Family Law team at Nevett Ford Lawyers on (03) 9614 7111 or by email at melbourne@nevettford.com.au.