Trying to Reach a Property Settlement? The following Guide is copyright.Copyright NSW Legal Aid Commission June 1999.Non profit organsations have permission to reproduce parts of this Guide as long as the original meaning is retained and proper acknowledgement is given. All other persons and organisations wanting to reproduce material from this Guide, should seek permission from the NSW Legal Aid Commission. This Guide explains about a property settlement and how to reach agreement under the Family Law Act (Cth) Australia.Sorting out how your property should be divided if you are married or have been married is dealt with under the Family Law Act. It is important that you obtain legal advice and/or representation from a lawyer for property settlement matters, particularly if you are unable to agree and you have to go to court. There are several steps you need to work through. Remember though - you can agree and file "Terms of Settlement" at any time along the way. 1.If you agree before going to court make an application for Consent Orders (Form 12A). See information below 2.If you don't agree before going to court, try mediation then if you agree apply for Consent Orders (Form 12A).See information below on how to file an Application for Consent Orders. 3.If you still don't agree: File a court application for Final Orders (Form 7) a)Attend an Information Session b)Attend the first court date -the Directions Hearing c)Attend the Conciliation Conference d)Attend the Pre-hearing Conference e)Attend the Court Hearing This Guide will now take you through these steps in detail.First, some advice: • Try your best to reach agreement because it will save you a great deal of time, upset and uncertainty. Don't worry if you don't get exactly what you want out of an agreement. There is no guarantee you will get exactly what you want at the end of a court hearing either. • Be honest about your financial situation throughout the negotiations. • If in the end your case must go to court, you should see a lawyer and get legal representation. If You Agree Before Going to Court- How to File an Application for Consent Orders(Form 12A) 1. Why bother with Court Orders? | writing orders| If you and your spouse or former spouse are able to agree then you should put this agreement into writing. You must then make arrangements for the Family Court of Australia to turn your agreement into Property Orders. Why bother with Court Orders? You should get the Court to make the Orders. This does not mean that you do not trust each other. It means that you can both share the many benefits that a Court Order will provide. It helps both of you understand the agreement Sometimes people don't have the same understanding of the agreement and this can cause real problems later on. To prepare orders, you must both think carefully about all of the agreement.As a result, the first benefit of an Order is that it goes a long way to ensuring that each of you have the same understanding of the agreement. It's a good reminder Sometimes, it reminds you of important things that you haven't thought about yet.Some examples are: 1. What will happen if you can't sell the land that you agree should be sold or if you can't get the price you both want? 2. Was a sum of money that you got from a member of your family a gift or a loan? 3. If the money was a loan, has it been repaid? 4. If one spouse is taking over responsibility for a loan, can you make sure that the lender can't make the other one pay if the loan falls into arrears? 5. What items of furniture or other items do you each want? These types of things can cause real problems later on if they are not thought about when you are reaching a property settlement agreement. Preparing Court Orders helps you avoid all of these problems. No stamp duty You don't have to pay stamp duty if one of you is transferring the title to a home or land to the other. But you can only save the stamp duty if the transfer is done to enable you to obey a Court Order. It is final You have the security of knowing that the agreement cannot be changed later unless you both agree to it. This allows you to get on with your life and concentrate on other things, knowing that this part of the breakdown of your relationship has been sorted out. It is not hard to get these Orders made. You both just fill out a form the Family Court will give you called an Application for Consent Orders (12A). You file this form at the Court within two months after you have both signed it. A Registrar can then make the Orders without you going to court. Sometimes the Court will ask for more information or request that you both give further attention to various parts of the document (eg. the wording of the orders). Once you have dealt with these matters, then the Court will make the Orders. The Court will then send you an official copy of the Orders. But how do I write the Orders? The Court can make many different Orders. You must think very carefully before you decide which Orders you will ask the Court to make.You must make sure that the Orders in your application mean what you want them to mean.If you both have reached agreement, then you must make sure that each of you fully understands the Orders. Sometimes, if the orders aren't clear then this can cause problems. The Family Court will often refer to you both as "Husband" and "Wife". This will happen even if you have been divorced. Otherwise, the Court will refer to you both as "Applicant" and "Respondent." There are a number of things to bear in mind about writing the Orders. These matters help make the Orders clear and workable. A Family Court Order tells people what they should do or should not do. So in your Orders, you should ask the Court to order that a person do things or not do things. You must make sure that you include time limits in your Orders. This does not mean that you don't trust each other. It makes the Orders clearer so that they can work to help you. You should try to mention specific dates in your Orders rather than periods of time. This again makes the Orders clearer. If you both own a home and you want it sold, you ask the Court to order you both to sell the house and how to sell it. You must also include whether you will sell the home now ("forthwith") or at some later time, for example, when a child turns 18. Sometimes, if people are worried about how long the sale will take, they will allow some months, (often three) to try and sell the property for an amount that is agreed upon. If you can't agree on a price then the Order can provide for a real estate valuer or estate agent to give a sale price.Normally, the Order will then have a provision saying that if the property has not sold, you will sell it at an auction for the best price that you can get. If you are going to sell the house, you will need to make an Order about what you want to happen with the money that you get from the sale (the "sale proceeds"). Sometimes there may be a problem about how an Order is working. It is a good idea to be able to come to the Court to change the Order. This lets you make sure that the order operates the way that you both want it to. Example of Property Order by Consent If we take an example of a situation where: • you both own a home at 2 Solution Street, Courtville that is worth $120,000; • you agree to sell it and split the sale monies evenly; • the house has a mortgage owing to the Court bank; • the applicant has a bank account with $30,000 in it and you agree that you will split this account so that the Respondent receives $10,000 and the Applicant keeps the rest; • you will each keep the car that you use; then an Order could be drafted that like this one below (note example only): 1. That the Applicant and Respondent immediately do everything necessary to arrange for the property at 2 Solution Street, Courtville to be sold by private agreement as soon as possible for the sum of $120,000 or whatever sum the parties agree on. 2. That if the property has not been sold on or before the (date), each party will do everything necessary to arrange for the sale of the property as soon as possible by public auction at the best price that can be reasonably obtained and, for the purposes of the sale, in particular, will: a) place the property with (the name of the auctioning agent), [theauctioneer] for the sale; b) execute all documents required by the auctioneer for the sale; c) request the auctioneer to recommend a reserve price to be placed upon the property for the purposes of the sale and accept the recommended reserve price; d) each pay one half of any sums requested by the auctioneer for advertising expenses in relation to the sale; e) give all the necessary instructions to a lawyer (or other person) for the preparation of a contract for sale, and for the contract to be made available to the auctioneer before the sale; f) attend the sale and negotiate with the highest bidder in case the reserve price is not reached, and accept the auctioneer's advice about whether to accept a price lower than than the reserve price; g) execute the contract for sale; h) co-operate with the auctioneer over the sale, including making a key available,so the property can be inspected at all times the auctioneer asks for, and ensuring that the property is neat and clean when prospective purchasers are inspecting it; j) execute all documents necessary to complete the sale. 3. That immediately after the property is sold, each party will arrange for the proceeds of the sale to be paid in the following way and in this order: a) The amount required to discharge the mortgage in favour of the Court Bank; b) The agent's commission and auction expenses, if any, due on the sale; c) any legal costs of sale; d) Any sums outstanding to the Respondent under Order 5 of these Orders; e) The balance to be divided equally between the parties. 4. That the person who is occupying the property pending sale, does everything necessary to ensure the punctual payment of all instalments of principal and interest due under the mortgage in favour of the Court Bank once the property has been sold, or until the discharge of the mortgage, whichever happens first . 5. That on or before the (date) the Applicant pay direct to the Respondent the sum of $10,000 by way of property settlement . 6. That other than as provided for above in these Orders, the Applicant and Respondent are the sole owners of all items of property in their respective possession or control. 7. That each party has liberty to apply for these Orders to be implemented on 14 days notice to each other and to this court. NOTE: There are many different situations that may arise in this example, that are not covered in this Order.You should get legal advice on how the Orders should be phrased in your particular case. Mediation A mediator listens to both your suggestions about how you think the disagreement should be resolved. The mediator will then make recommendations to you both to try and help you reach an agreement. Sometimes, the Family Court can make arrangements for mediation. There are a range of mediation services available in NSW. What are my rights to a property settlement? The matters that the Family Court looks at in a property settlement are set out in section 79 and section 75(2) of the Family Law Act.There are three main things that the Family Court looks for when it is making a decision about a property settlement. 1. Assets and their Values The Court must be able to find out what assets are owned by each of the parties. This includes details of the current market value of things like land, bank accounts and superannuation. It does not matter when the asset came to be owned. 2. Different types of contributions The Court needs to find out all of the contributions that have been made to the assets and to the marriage generally. The types of contributions that are important are set out in section 79(4) of the Family Law Act. Contributions can be financial or non-financial. There are many different types. Here are some examples: • Assets owned by each party at the time when they started to live together as husband and wife. • Assets that are owned at the time when the parties stopped living as husband and wife. • How these assets came to be owned and how they were cared for. • Who earned the income that came into the marriage. • Who cared for the residence in which the parties, and any of their children lived. • Who cared for any children living with the parties. • Who cooked, cleaned, washed and performed the many and varied household tasks for the parties and children. • Gifts and inheritances. It is important to understand that contributions as a homemaker and a parent are seen as very important contributions. In most cases where the marriage has been a long one, they are seen as equal to financial contributions. 3. Future financial position The Court looks at what the future holds financially for each of the parties. These matters are set out in section 75(2) of the Family Law Act. Some examples are: • The age and state of health of each party. • How much income each party is able to earn. • Whether each party is looking after a child of the parties and whether either party wishes to continue caring for the child full-time. • Any child support that is being paid. • The need for each party to have a reasonable standard of living. The Court gives the party whose financial future is not as good as the other, some extra part of the property owned by the parties.There are many important matters that vary from one situation to another. It is extremely important to that you obtain legal advice. What if we still can't agree? If you can't agree about how your property should be divided up then you must think about applying to the Court so that these matters can be sorted out. For further information on what to do if you can't agree you will need to File an Application for Court Orders (Final Orders-Form 7).

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