It’s always difficult when you decide it’s time to separate from your partner. You might feel under pressure to make swift decisions, and there’s an overwhelming number of things you need to work out, and property settlement is likely the most stressful one. Purchasing a property is the biggest purchase you’ll ever make, so negotiating your property settlement post-separation is one of the largest financial agreements you’ll make. We recommend doing some research before you get started.
In this article we will answer some questions for you about what is a property settlement. We will also discuss legal fees expectations and if your ex-partner can pay your legal fees and court costs.
What is involved in a property settlement?
The definition of a property settlement is when you work out which person in the relationship gets what when you separate. This relates to people who have been married or in a de facto relationship.
This isn’t just related to your house, it covers many other things including:
- Contents of the house
- Interest in family trusts
- Business interests
- Investments and money in the banks (superannuation, shares, managed funds etc.)
We recommend that you make an appointment with a family lawyer to discuss your circumstances before you even begin negotiating an agreement. Because every family and relationship is different, therefore your property settlement may contain items that are outside of the standard inventory.
Here’s what you need to know about property settlements.
Let’s cover the main things you need to know about settling your property prior to getting started.
Property settlements aren’t always 50/50
There is a common misconception that property settlement will be 50/50. There are a number of factors that will affect how the property is divided, especially if you have children.
Settling quickly matters
Taking years to complete property settlement can substantially impact what you pay and what you receive when you do settle. This is incredibly impactful if you own a property or business.
Always work with a family lawyer
While it is possible to complete a property settlement without a family lawyer, we do not recommend it. If you agree to a private settlement, one of you can change your mind at any point and ask for a formal settlement. Completing a property settlement privately carries risks for both you and your ex-partner. This is usually good for one and bad for the other, so it’s best to get it done legally the first time.
Settlement for a family home
You will always need a family lawyer if you have owned a home together. You need a lawyer to transfer property to the new owner’s name legally. This is necessary regardless if you transfer property to your ex-partner or if you both decide to sell, you will need to transfer to a new owner.
Legal fees you will be required to pay
If you decide to use a family lawyer to negotiate your property settlement instead of the courts, you will be expected to cover your own legal fees. There may also be fees for administration such as emailing, printing, and posting out documents. Your family lawyer must discuss how they charge their legal fees before you begin but most family lawyers charge an hourly rate.
Some lawyers provide the option to pay at the end of your settlement or monthly, it depends on your circumstances. We always recommend asking your lawyer to discuss your payment options with you on your first meeting.
Can my ex-partner pay my legal fees and court costs?
If your property settlement goes to court because you couldn’t reach a settlement through mediation or negotiation, generally, you will pay your own legal fees and court costs regardless of the outcome.
However, in exceptional circumstances where the court deems appropriate, the courts can order one party to pay the other party’s legal fees and court costs.
Here are some examples where the courts may order an ex-partner to pay legal fees and court costs.
- Your ex-partner has breached a court order
- Your ex-partner didn’t follow the court’s instructions, including providing documents and valuations.
- If you have made a written settlement offer before court proceedings began and your ex-partner refused to accept it, but the court has awarded you a settlement that is equal or greater than your offer.
This decision is called an order for costs and the courts will take the following things into consideration:
- Are either of you receiving Legal Aid?
- What are the financial circumstances of both parties
- Did either of you fail to comply with previous orders of the court?
- Did you respectably conduct yourself through the proceedings
- Was a written offer was made before court proceedings?
It is not a common occurrence for the courts to make an order for costs that cover your court costs and legal fees. So, remember that you will most likely be responsible for any legal fees incurred before court proceedings. Your family lawyer will be able to apprise you of expectations if they believe there’s a chance your court costs and legal fees could be covered.
We hope that you have found this information helpful. Here at Joliman Lawyers, our team of specialised family lawyers will listen to your situation and provide the advice, guidance, and assistance you need to negotiate a fair property settlement. So call us today, we’re here to help.