Hi there. When a married or de facto couple separates, the parties will generally need to divide their assets. This is called a ‘property settlement’. You can negotiate a property settlement with your ex-partner without going to court, but if you want the arrangement to be legally binding or if you cannot agree on how to divide your shared assets, then you can apply to court for assistance. Applications are made to the Federal Circuit Court or Family Court of Australia (www.familycourt.gov.au). As part of the court process, the parties must attend a formal mediation to attempt to reach an agreement on the property settlement before actually reaching the court room.

If the matter ends up in court, there is no set formula used to divide a couple’s property. The court will consider things such as the direct and indirect financial contributions of each party to the marriage, non-financial contributions, and the future needs of each spouse. The proportion of your share will depend on many factors, including the assets you have retained, your current income, future earning capacity and the degree of custody you have of your children. The court’s decision will be one that the court considers to be just and equitable based on the overall facts of your case.

Parenting arrangements for your children are dealt with in a similar way. If you and your wife can agree on these arrangements, there is no need to go to court. You can simply put your agreement in writing in a document known as a ‘parenting plan’. This plan is not legally binding, but you can apply to court for a ‘consent order’ if you want the parenting arrangements to be enforceable in the event one parent fails to comply with the plan.

You can also apply to court for a ‘parenting order’ if you and your ex-partner are unable to agree on parenting arrangements. The court will make an order based on what is in the best interests of the children. In making this decision, the court will consider a wide range of factors, such as who the children will live with, their safety and wellbeing, and, if they are old enough, their own opinion on the proposed parenting arrangements.

Suggested way forward

If you are having difficulty negotiating a property settlement or parenting arrangements with your wife, you should consider speaking to a family lawyer who can advise you of your rights and the best course of action. A lawyer can also represent you in any mediation or formal court proceedings that may arise. By pressing the “Consult a Lawyer” button, LawAdvisor can help you search for experienced lawyers and obtain fee proposals for their services. Costs for legal advice and representation will vary between providers based on experience and the scope of services.