A quick financial settlement can help parties to a relationship breakdown to move on, helping to bring certainty, and removing some of the stress. Financial settlements are formalised through Property and Financial Agreements and Consent Orders by the Family Court. This article asks and answers some of the most common questions we get asked.
If your goal is to reach a quick financial settlement after your relationship breakdown, read on to discover how you can speed up the process and cut financial ties with your ex as fast as possible, but be aware, even if things go really well it usually takes 6 to 12 months to get it all formalised – all the more reason not to delay getting going and to get in touch now – contact us.
Do you need to wait a certain time after separation to finalise your property settlement? Do you need to wait until you’re officially divorced before you can start the process? This issue can be confusing to many people since it’s often general knowledge that you have to wait 12 months after separation to divorce. But it’s important to know that you do not need to delay your financial settlement for any period after you have separated from your ex.
In fact, you can start it immediately, while your divorce process plays out separately. That’s because your romantic separation is treated completely separate from financial separation: you can divorce without a property settlement, and you can have a property settlement without a divorce!
It’s best to start the financial separation process as soon as possible because there are time limits in place: married couples have one year after their divorce order date to finalise their financial separation, while de factos have two years from their separation date.
So let’s take a look at how you can get your ducks in a row to achieve a quick financial settlement, even if you’re still working out the nitty-gritty of your divorce and/or parenting issues with your ex.
How long does property settlement usually take in Australia? Every couple’s situation is unique, so the time it takes to complete a financial settlement will vary. But one thing is for sure: out-of-court settlements are much faster to achieve (and a lot less expensive) than going through litigation.
What tends to slow down the whole process of achieving a quick financial settlement is when parties don’t provide the necessary full and frank financial disclosure. Disclosure, or the obligatory exchanging of financial information, can several weeks and sometimes months. If the asset pool is complex, it usually takes longer. And if the other party stalls, for whatever reason, things can drag on for a long time. You may also disagree on an asset’s value, meaning a professional valuation is needed. These can take a long time to obtain. Our tips for a quick financial settlement are:
1. Start mediation early for a quick financial settlement.
Mediation can be started at any time and is the best way to resolve your dispute quickly and without litigation.
2. Be prepared to negotiate, and make compromises.
For a quick financial settlement, reach an in-principle agreement with your exas soon as possible, about how your property should be divided. You have to recognise that you can’t have everything your way and accept that you and your ex will both need to “win some and lose something” in your agreement. Park your “issues”, arm yourself with a good understanding of the legal principles of financial settlements, and read up about being a good negotiator (and take one with you preferably one of our lawyers!).
In the end, the law is fairly clear about what you will get, even financial bullies will eventually be brought under control by the formal legal process. Disagreements usually amount to just a small amount of the total pool available to you, usually just a few %.
3. Get a “post-nup” binding financial agreement.
Formalise your agreement with a Binding Financial Agreement (you can enter one even after your marriage has ended) or with consent orders. A Binding Financial Agreement is usually the fastest way forward and can be completed within a month, depending on how complex the asset pool is.
4. Enter consent orders.
The next best way to arrive at a quick financial settlement is to sign consent orders. These can take several months to finalise. Paperwork has to be filed with the courts, and courts typically take a few months to approve your agreement. Consent orders will then need to be implemented within a timeframe that is set out by the court. When the transfer or sale of real estate is necessary, there are further steps that still need to be completed.
5. Negotiate out of court but use lawyers.
Arriving at an agreement with the assistance of lawyers, but settling before going to court, is typically the next fastest way to get a settlement. This usually takes around six months to a year.
6. Start the court process.
If, however, you know that realistically, it’s only going to be a litigated settlement, then get the ball rolling now, as the court process can be slow. The time taken from the lodgment of your application until an outcome is reached is usually around a year to 18 months. First court dates usually occur a few months after applications are filed. A conciliation conference (court-based mediation) is ordered before proceedings begin, as the courts want you to really try to resolve the dispute before litigation takes place.
If agreement doesn’t occur at conciliation, your hearing will probably then take place around 12 to 18 months after you first file your application.
7. Speedy disclosure is a key strategy for quick financial settlement.
Gathering all the information required for your own disclosure obligations can be time-consuming. So start the process of collecting all your financial information (bank accounts, credit cards, superannuation, property, vehicles, loans, shares, inheritances, tax returns, debts, etc) as soon as possible. It will generally help if you ensure you are able to access online records of your relevant financial information rather than relying on paper filing or records. Online account information is more likely to be up-to-date and can more easily be shared with your family lawyer.
8. Facilitate productive negotiations.
Of course, you can’t control how the other party behaves, but you can do your best to keep things moving forward for a quick financial settlement with open and honest communication from your end. Be willing to genuinely listen to your ex and aim for a cooperative mindset. The more productive your negotiations, the swifter you should resolve your settlement.
9. Speed up your ex’s disclosure.
If your ex is dragging their heels on disclosure informally, you might need to formally request full financial disclosure through a lawyer. But first, you could apply for family dispute resolution mediation. If your ex won’t engage, you’ll be able to show a court that you tried. If you do then go to court, the court will impose a strict timeline and rules to ensure your ex provides timely disclosure (or face consequences). You can also apply for interim orders to get your ex to make financial contributions or to stop them from disposing of assets.
Ultimately, if their stalling and delays are really unreasonable, you would then seek a costs order in your favour, or ask the court to adjust the settlement to take into account non-compliance.
10. Don’t go it alone.
Avoid delays by getting the correct advice from the start. It’s in your interests to consult an experienced family lawyer for advice, even if you don’t engage them to negotiate on your behalf. Consider collaborative law: trained collaborative professionals will help you find mutually beneficial solutions and resolve matters out of court.
Apart from your family lawyer, you will also find it beneficial to have the help of accountants or financial advisors when possible. The more complex your asset pool, the more important this is.
Having professional advice helps with complex negotiations and can help avoid costly errors. It will also ensure any agreement you reach is legally valid and fair. Your lawyer can also help in situations where your ex is delaying settlement, for whatever reason, with a range of strategies to move your matter forward faster.
11. Are you ready to do this?
Although a quick settlement allows you to sever financial ties and move on with your lives as soon as possible, it’s important to remember that you may very well need to take the time to allow emotions to cool a little so that you are not making rash, hasty decisions on serious issues that have long-term repercussions.
Unless you feel you are truly at a point where you can think things through logically and rationally with a clear head, don’t rush into any agreements just to get it all over with. Remember, you need to take the time to reflect on the decisions to be made and their consequences, and ideally obtain some professional advice before you embark on the process of finalising your settlement.
A second, important reason why you might not want to rush things is in situations where your ex has run up debt after your separation and before settlement has been reached. You will remain liable for such debt, so it may be that you wish to delay settlement until you can establish that your ex’s debt level has been reduced.
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Alliance Family Law can assist you in reaching a quick financial settlement. We are skilled at facilitating negotiations and helping our clients to reach a timely agreement. To speak with Canberra family lawyer Cristina Huesch or one of our other experienced solicitors, please call Alliance Family Law on (02) 6223 2400.
Please note our blogs are not legal advice. For information on how to obtain the correct legal advice, please contact Alliance Family Law.
