If you ever find yourself in the unfortunate situation of having your marriage breakdown, one of the first considerations you will need to make is how the family assets will be split and in most cases this will involve the family home.
When the split is on mutual terms parties will often try and save legal costs by reaching an agreement between themselves, which usually involves the house being sold and the proceeds being divided equally between the parties. While you can come to an agreement without having lawyers involved, such agreements are usually unfair to one party and a 50/50 split is very rarely ordered by a court.
Take for instance if one party has a much higher earning capacity than the other, or there are children involved and one party will be taking care of the children to a much higher degree than the other.
Seeking legal advice in such a situation is a good way of ensuring your interests are protected. A lawyer will be able to organise for a binding property agreement to be constructed.
A binding property agreement can only be done in two ways:
- By way of a Binding Financial Agreement under the Family Law Act; or
- By way of Orders made by Consent in the Family Court, or Federal Circuit Court.
By putting in place such an agreement each party will be obligated to follow the terms of this agreement and the distribution of sale proceeds will be fairer between each party.
Where no binding property agreement is put in place, one party can later take the matter to court and the informal agreement may be deemed unfair and the assets may be redistributed.
So it’s always a good idea to seek legal advice when it comes to distributing assets in the case of a marriage breakdown.