Our property mediation model utilises the same four-step process that the court applies.
Step 1: The Asset Pool
To ascertain the net asset pool, all assets and liabilities of your relationship will need to be identified. These include all personal and business assets and liabilities. It is essential that you provide full and frank financial disclosure in order for any agreement to be reached in a fair, just and equitable way. If you try to hide or do not disclose all your assets, any agreement made could result in your property settlement being overturned and you being found in contempt of court.
Assets are the things you own that have a value. Assets could include, but are not limited to:
- Retrievable life insurance policies
Liabilities are debts, where money is owed. Examples of liabilities include, but are not limited to:
- Car loans
- Personal loans
- Credit card balance
- Taxation liabilities
- Business debts
The net asset pool figure will then be calculated. The net asset pool is generally calculated using the formula ‘Total Assets – Total Liabilities = Net Asset Pool’. The net asset pool figure is the amount of money that will be divided.
If both parties cannot agree on the value of an item, for example a property or a business, an expert may need to be engaged to provide the value.
Step 2: Contributions
Consideration is given to how each party contributed to the relationship. The legislature has broken the contributions into four specific groups:
- Non-financial contributions
The court considers financial contributions and non-financial contributions equally.
Financial Contributions are all monetary contributions to the relationship. Financial contributions can include but are not limited to
- Monetary amount each person had at the start of the relationship
- Termination or redundancy payments
- Monetary gifts
- Lotto winnings
These contributions are described as parenting responsibilities undertaken, such as helping children with homework, taking them to school, spending time with them etc. There is no specified amount, however when one party works and the other cannot due to parental responsibilities, it is seen as an equal contribution to the wage that the other party earns.
These are the contributions made to the home. For example: vacuuming, cooking, washing, cleaning etc. Homemaker contributions are very similar to parenting contributions.
Non – Financial Contributions
Non-financial contributions are contributions that a party has made and added value, such as renovating a house, landscaping, painting etc. The value of the non-financial contribution could be determined by how much it would have cost to pay someone to perform the same job or by the value added from obtaining the asset.
Step 3: Identifying Future Needs
During property mediation, current and future needs will need to be discussed and taken into account. Future needs include but are not limited to:
- Age of the parties
- State of health, including mental health
- Income, property and financial resources
- Physical capacity
- Earning capacity
- Who has or currently cares for children within the relationship
- Responsibilities of either party to support another person
- Whether there is an imbalance of living standards
- Duration of the relationship
Step 4: Just and Equitable
Once the splitting percentage of the asset pool has been agreed upon, parties will consider various options in relation to what assets each party retains or gets. In some cases, if the asset that one party obtains is over their percentage, an adjustment may be made in the other parties favour. In other words, one party will need to pay the other party in order to keep with the agreed percentages.
The split amount agreed on must be Just and Equitable in the eyes of the court, as the agreement will need to be filed with the court.
In cases of high conflict, it is best to engage in the legally assisted mediation model to sort out jointly acquired property. Mediation is a much cheaper alternative to engaging the services of solicitors and going through court to reach a just and equitable property division.