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There is enough uncertainty during the pandemic without the added anxiety of not knowing when your family law matter will come to an end. The good news is that it is not necessary to put your property settlement on hold.
While we always try to resolve our clients’ property matters by negotiation or mediation, where the family law courts have indicated they may start adjourning non-urgent property matters, it is more important than ever to utilise alternative dispute resolution.
Many mediators have started conducting their mediations by Zoom, Skype or other forms of electronic communication, with parties and their lawyers attending mediation from their own homes. There is therefore no reason for mediations to be adjourned until social distancing guidelines have been removed.
In terms of finalising the terms of your property settlement, if you have risky investment portfolios, real property that will need to be sold or a superannuation portfolio made up of shares, the deal struck with your partner will be safer where it is expressed in terms of a percentage of the net property pool.
For instance, it is not uncommon for orders to be drafted such that once the family home sells, one party is to receive the first $100,000 of the net sale proceeds and the other party is to receive the balance. With restrictions on open houses and more cautious buyers in the market given increasing unemployment, this could be problematic. If the family home achieves a lower sale price than expected, the party receiving the balance of the net sale proceeds may not receive the cash adjustment they thought they would or may even receive nothing at all.
The alternative is to draft orders where each party retain a specified percentage of the sale proceeds from the home, such as 65% to one party and 35% to the other. This means that both parties bear the risk and reward of a fluctuating market.
Similarly, if you intend to split a portion of your superannuation to your partner, this can be expressed as a percentage of your superannuation, as opposed to a fix sum (also known as a base amount). This is particularly important where your superannuation is invested riskily, such as in shares.
If your business is being valued by a joint expert, it may be best to wait a few months before engaging the valuer so the latest figures can be supplied to the valuer. While the last few financial years may have been very profitable, the recent months could have seen office closures, staff being let go and dwindling profits. You would want to make sure this is considered by the valuer when they are preparing their valuation.
If a property settlement deal is reached with your partner, consent orders can be filed on the online court portal and issued by the court electronically. There is no need to attend court in person.
We are being more creative in how we go about resolving matters and drafting orders for our clients, because ultimately, it is always best that a quick and cost-effective solution is reached, even in the midst of a pandemic.
This publication is for information only and is not legal advice. You should obtain advice that is specific to your circumstances and not rely on this publication as legal advice. If there are any issues you would like us to advise you on arising from this publication, please let us know.
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Cooper Grace Ward acknowledges and pays respect to the past, present and future Traditional Custodians and Elders of this nation and the continuation of cultural, spiritual and educational practices of Aboriginal and Torres Strait Islander peoples.
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