Separating from your partner is a challenging and often stressful time for all involved. There’s a lot to work out, and often, it feels like decisions need to be made very quickly. Negotiating your property settlement is one of the largest financial agreements you’ll make after separating so it's important you do some research before you get started. That said, what is a property settlement? What legal fees can you expect to pay? And, is it possible to have your legal fees and court costs paid by your ex-partner?
What is a property settlement?
A property settlement covers much more than just your family home, it also covers things like:
- Spousal maintenance
- Child support
- Any other properties or real estate
- Money in the bank or investments (shares, managed funds, superannuation etc)
- Household contents
- Interest in family trusts
- Business interests
Because no two relationships are the same, your property settlement may contain things that are outside of the standard list. Even your family pet can be considered in a property settlement, so it’s a good idea to discuss your circumstances with a family lawyer before you begin negotiating an agreement.
What do you need to know about property settlements?
There are several things you need to know about settling your property before you get started:
- Property settlements are not always 50/50. There are various factors that influence how property is divided, including whether you have children together
- Timing matters – especially if you own a property or business. Leaving your property settlement for years can have a significant impact on what you might receive or pay when you finally do settle
- You should work with a family lawyer. While you can complete a property settlement without one, it is not recommended. Completing a property settlement privately carries risks for both you and your ex-partner. If you agree to a private settlement, one of you can change your mind at any point and ask for a formal settlement. This is normally good for one and bad for the other, so it's best to get it done legally the first time
- If you owned a home together, you need a family lawyer to help you legally transfer the property into the new owner’s name, whether that be you, your ex-partner, or a new owner if you both choose to sell
What legal fees will you have to pay?
If you are negotiating your property settlement through a family lawyer instead of the courts, then you should expect to cover your own legal fees.
Your family lawyer will discuss how they charge their legal fees before you begin but most family lawyers charge an hourly rate. There may also be fees for admin such as printing, emailing, and posting out documents. Some lawyers charge monthly, and some charge at the end of your settlement, it depends on your personal circumstances, so it’s a good idea to ask your family lawyer directly what to expect during your first meeting.
Could you have your legal fees and court costs paid by your ex-partner?
If your property settlement goes to court because you couldn’t reach a settlement through negotiation or mediation, it is a general rule that you will pay your own legal fees and court costs regardless of the outcome.
However, there are some exceptions to this, and the courts have the power to order one of you to pay the others legal fees and court costs if they deem it appropriate.
The courts may order your ex-partner to pay your legal fees and court costs if:
- You made a written settlement offer before court proceeding began, which was not accepted, and the courts have awarded you a settlement that is equal to or greater than that offer
- Your ex-partner has breached a court order
- Your ex-partner has failed to follow the court's instructions, such as providing documents and valuations.
When the courts make this decision, it is called an order for costs, and they will consider things like:
- The financial circumstances of both of you
- Whether either of you are receiving Legal Aid
- How you conducted yourself through the proceedings
- Whether either of you failed to comply with previous orders of the court
- Whether a written offer was made before court proceedings
It is rare that the courts will make an order for costs that covers all your legal fees and court costs. Generally, any legal fees incurred before court proceedings will remain your responsibility to pay. Your family lawyer will be able to let you know what to expect if they believe you have a case for your court costs and legal fees to be covered.
Need help with your property settlement?
We understand how complicated it is to negotiate a property settlement, and if you end up going through the courts, you will need an experienced family lawyer. 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. Call us today, we’re here to help.