For those experiencing a separation of a marriage or domestic relationship we provide a brief outline of matters to be considered when dealing with the distribution of property belonging to either or both of you.

In relation to property disputes there are generally two options to consider:

Settlement by agreement where you both agree on how to distribute your property which is then ratified by Consent Orders from the Family Court; or Issuing Court proceedings

Even where it is necessary to commence Court proceedings, the Family Court has various processes in place which are designed to lead the parties to an agreement before the case is heard by a Judge. Most cases settle before a Judge has to determine the case.

The earlier parties can reach an agreement in relation to property the better, as it saves time, money and stress.

Sometimes parties can reach an agreement themselves, however, it is important that each party then consults a lawyer to have the agreement properly documented and orders made in the event that either party has a change of mind due to any number of circumstances.

However, most parties need the assistance of their lawyer to provide them with advice in relation to their entitlements and to negotiate a settlement with the other party. Lawyers are well placed to do this because they are objective and independent. The vast majority of property disputes are successfully settled once lawyers become engaged.

Here are some steps that you can take so that you can properly brief your solicitor:

You need to determine the assets of the relationship. To do this you must identify all property relating to your domestic relationship. By law, this property includes all property belonging to either party individually, whether or not that property came into existence before or after the relationship or before or after separation.

Property includes all real estate, personal property, shares, cars, savings, cash, collectables, furniture and superannuation just to name a few. Long service leave entitlements, interests in trusts, personal injury claims and in some cases beneficial interests in estates are also recognised as being property that must be taken into account.

You should also make a list of all your liabilities. These include mortgages, personal loans, credit cards, leases, taxes and any outstanding bills. The total of all liabilities must be deducted from the total of all assets to obtain the value of the net "matrimonial pool".

You then need to identify the contributions made by each party during the domestic relationship. Contributions include both financial and non-financial contributions. The most common example of a non-financial contribution is that of the homemaker who has often given up work in order to look after the home and /or children. The law recognises that the contribution of a homemaker can be just as important as the financial contribution made by the other party.

You then need to consider each party's future needs. This consideration will depend upon the age and health of each person, income and financial resources, the likely cost of any dependents such as children, the duration of the domestic relationship and the extent to which it has affected a party's past or future earning capacity, whether or not a party has established a new domestic relationship with another person and the standard of living enjoyed by each party prior to separation.

Common problems which prevent parties from easily reaching an agreement include the emphasis placed on the contribution to the relationship, the valuation of assets of the relationship, taking into account the future needs of each party and the disparity in earning capacity between the parties.

Often there is a disparity in earning capacity which can affect the distribution of the net asset pool. For example, often the homemaker has given up employment and the opportunity of ongoing training and education which places that person at a disadvantage in the labour market place. A Court is required to take this into account when deciding the appropriate distribution of property between the parties. The Court is also required to take into account other factors, such as the requirement to care for children and the level of income and property resources available to each person.

If you would like to arrange a confidential appointment with Belbridge Hague to discuss your entitlements, please email John Binnie or telephone our office on 02 6051 4666.