WHAT ARE THE OPTIONS?
Whether you have been married or living as a de facto couple, negotiating the division of your relationship assets is often one of the most stressful aspects of separation.
When it comes to property settlement negotiations, there is not a one size fits all method of resolution. The best way to resolve a property settlement matter, will depend on a range of factors such as:
The size of the relationship asset pool;
Whether you and your ex remain amicable;
Each parties willingness to engage in meaningful negotiations; and
Whether there is a power imbalance (due to a history of family violence or other factors);
Essentially there are six ways in which you can negotiate and achieve a property settlement with your ex-partner. The list below is a brief run down of each of those options, with each option increasingly in terms of both complexity and costs:
Depending on how amicable your separation is, you might be lucky enough to be able to engage in meaningful negotiations with your ex and come to an agreement as to how the relationship assets are to be divided. If you are able to reach an in-principle agreement, you can then seek legal assistance to formalise that agreement making it both legally binding and enforceable. This is the cheapest and fastest way to achieve a property settlement.
If things between you and your ex are not great but you still think you might be able to negotiate a resolution with a little bit of help, then mediation is a great option. Mediation is often used to help couples resolve their dispute outside of court and is hosted by a professional and impartial mediator. The process of mediation involves giving each party the chance to speak without interruption and respond to the other party in a calm and coherent manner. The mediator will then assist the parties to negotiate arrangements that suit both party’s needs. If an agreement can be reached, the parties can seek legal assistance to formalise the agreement making it legally binding and enforceable. The costs of most community-based mediation services will depend on your individual income, however can range from free to $100 per hour/ per person.
Negotiation through Lawyers
If mediation is not your preferred option for negotiating property division or your relationship with your ex is not particularly amicable, you can engage a family lawyer to negotiate on your behalf. Your lawyer can either negotiate directly with your ex-partner or a lawyer that they have instructed to act for them. Negotiations of this kind can take longer to resolve and will cost more than community-based mediation. The costs associated with engaging a lawyer for this purpose will ultimately depend on the complexity of your matter and the time it takes to reach a resolution but will generally be in the vicinity of $5,000 to $15,000.
This process involves the parties and their lawyers meeting with other professionals, such as accountants and valuers to assist the parties to negotiate an agreement. This approach requires both lawyers to be collaboratively trained and enables the parties to negotiate a resolution that considers both parties needs and desires. Although this may be a more costly method of resolution, it can typically result in a quicker outcome although this will depend on the complexity of the matter and the availability of the professionals required to attend the sessions. Collaborative law is best suited to those who need and prefer the guidance of a lawyer. As the lawyers’ purpose is to have their client’s best interests at heart, this process will be best for those who don’t feel competent enough to negotiate any financial issues by themselves.
Is a more formal approach in which the parties provide arguments and evidence to an arbitrator who has been jointly appointed by the parties. The arbitrator will then make a determination to resolve the dispute. In this method the decision making is taken away from the parties, however in some matters this is what parties need where they simply cannot reach agreement. Once arbitration has finalised, the arbitrator will make an arbitral award. An arbitral award is final and upon registration, it has the same impact and enforceability as an order of the Court.
Commencing court proceedings should always be considered an avenue of last resort. If you speak with anyone who has been through the family court system in the past, they will likely tell you that the process was drawn out, costly and emotionally draining. Litigation places the decision making in the hands of the judge who considers the evidence and then, at a final hearing (trial) will make a finding as to how the assets should be divided. Often this will be a result that neither party is particularly satisfied with. This process can often take years to complete and will often cost in excess of $100,000 if the matter proceeds to trial.
If you would like to speak with one of our family law solicitors to see which of the above options might best be suited to your situation, contact our office on (08) 8451 9040 today.