Property Division in NSW
The client, located in NSW, has recently separated from their husband and is seeking assistance with the property division aspect of their separation. The primary concern involves a home for which the client pays approximately 70% of the loan. The client has expressed interest in selling the property as part of the division process. There is a focus on understanding the implications and steps involved in the sale and division of assets.
Questions about this case
These answers have been verified by a lawyer in the LEAP networkWhat are my rights to a fair division of the property given I pay a significant portion of the mortgage?
In New South Wales, property division during separation is guided by the principle of just and equitable distribution. Your contribution towards the mortgage is viewed as a significant financial contribution, but the court also considers non-financial contributions and future needs. This includes homemaking, caregiving, and potential earning capacity. A fair division involves evaluating all contributions and circumstances to ensure an equitable outcome. For further details, you can refer to Family Court of Australia's guidelines on property settlement.
How is the value of the home determined in a property settlement during a separation?
The value of the home in a property settlement is typically determined by obtaining a professional valuation. A registered valuer assesses the property's current market value, considering factors such as location, condition, and recent sales. It's advisable to agree on a valuer with your spouse to avoid disputes later. The court may also take into account contributions made towards the mortgage and property maintenance.
What steps should I take to ensure the property division process is legally binding and enforceable?
To ensure the property division process is legally binding, formalise the agreement by applying for a Consent Order from the Family Court of Australia. This official document outlines the division of assets. If there is no agreement, you may need to apply for financial orders through the court. It’s beneficial to engage a solicitor to assist in drafting and submitting these documents, alongside ensuring complete financial disclosure from both parties.
What alternative dispute resolution options are available for property division before resorting to court proceedings?
Yes, in New South Wales, alternative dispute resolution options such as mediation and arbitration are available for property division. Mediation involves working with a neutral mediator to reach an agreement, offering a quicker and more cost-effective solution than court proceedings. Arbitration provides a binding decision from an arbitrator, and collaborative law involves both parties and their lawyers negotiating an agreement outside of court.
