Property investment and moving in together is always a big and exciting step for any couple. But if the dream ends for you and your spouse after investing in a home together, picking up the pieces afterwards can be a huge financial and emotional stress.
Despite popular beliefs, dividing a property isn’t always a 50/50 exchange. How a court decides on property settlement doesn’t involve a set formula – it’s simply based on your own unique needs.
Property mediation is an essential part of helping with the process. Used to assist with resolving any property issues so you and your spouse can move on quicker. If you and your spouse have decided to split and have ties in property, here’s a few tips to get you on the right track.
Understanding property settlement
Property settlement needs to be undertaken as soon as you and your spouse decide to separate or divorce. As the process can be complex and time consuming, getting on top of it as soon as possible is always best. When a home is jointly-owned, it needs to be decided what happens to the house in the event of a separation or divorce. The house could be sold with the money split between parties, or one spouse may be able to take it over and ‘buy’ out the other person.
Every couple who has invested in a property together will need to go through property settlement to finalise financial ties with each another. Legal advice is always recommended before agreeing to any proposed settlement. In most cases, property settlement can be solved through mediation. The process works out both parties’ rights and entitlements and the settlement is calculated by factoring in all assets and liabilities and contributions made during the relationship, both financial and non-financial.
Why mediation is important
Division of property and assets isn’t always straight forward. When emotions are running high, it’s a good idea to have a professional third party to break down the information and work out entitlements.
Mediation is a confidential, fast and effective way to resolve property disputes. Through effective mediation, an agreement can usually be met by both parties which saves time, money and stress in the long run. Having a structured process in place increases the control both you and your ex-partner have over the decision and ensures you’re in compliance with agreements and documentation. In most cases when mediation is involved, property settlement will not need to go through the courts after a divorce or separation. Before going through mediation, make sure you have all the relevant documents to help with the process.
Getting through the first steps
You and your former spouse may have already come to an agreement about how you wish to deal with the property and other financial assets. It’s still important for both parties to still seek their own independent advice and carry out mediation to finalise the terms of the agreement and how you may go about formalising the property settlement so its legally binding. If you and your former spouse are married, you do not need to be divorced before you start dividing the property. It helps to get through the early steps as soon as the decision has been made to ensure you both can move on quicker. Getting through mediation and finalised documents is best sooner rather than later if children are involved too.
Obtaining mediation for property settlement after a divorce or separation comes with many achievements. In most cases, mediation will help to achieve an agreement between both parties without having to go through the Family Courts. Mediation can also achieve agreements in relation to obtaining property valuations and partial property settlement. If mediation is unsuccessful and both parties cannot reach a valid agreement, a professional third party can assist in progressing the matter to trial in the Family Court, although it’s very unlikely property settlements need to go through the courts.
Reaching an agreement through mediation
Mediation and the Family Courts use a 5-step process to determine how the property settlement will be achieved in the best interest of both you and your former spouse. This includes consideration of whether a property settlement is necessary (sometimes it’s not because of the length of time you were together or if financial affairs were kept separate during the relationship), reviewing assets and liabilities, assessing contributions and future needs, and how everything will be divided.
If you both come to an agreement, the mediator will help put this in writing. It’s paramount you both understand what you’re agreeing too – ask any questions if you’re not 100 per cent sure about anything. If you need time to think about the agreement or obtain your own legal advice, let the mediator know.
Enforcing an agreement through mediation
The agreement made can then be decided whether it’s informal or enforceable. If the agreement is enforceable, it’s legally binding and both you and your former spouse are under obligation to keep to your part of the agreement. If it’s only in good faith (informal), this simply relies on the promise to each other – and the mediator – you will both do what has been agreed upon.
Mediation for property settlement is a structured, confidential process that is designed to help both parties reach an agreement. If you and your former spouse are married, you don’t need to wait until the divorce is finalised to move forward with mediation and property settlement.
Regardless of whether you’re married or separated, getting on top of mediation to assist with severing financial ties as soon as possible is advisable.
This article is written by Jayde Ferguson, who writes for Kim Wilson & Co – a leading Australian firm of divorce lawyers, mediators, specialists and barristers offering professional advice and financial agreements in all aspects of Family Law.
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