Property Settlements

When a shared lifestyle ends, it can be difficult to work out how to divide the assets and liabilities that have accumulated between the parties. We can help you achieve a family law property settlement that is fair and reasonable and takes account of your unique circumstances.

How is property divided after separation?

The division of property after a relationship breaks down is not determined solely on the legal ownership of assets or the financial contributions by the parties. A settlement also takes into account other ways that parties have contributed to the relationship and what their future needs will be. The ‘asset pool’ will include property that you entered the relationship with, property acquired during the relationship, and property acquired after separation.

Most family law property settlements are finalised without going to court, which is generally only considered as a last resort. However, it is important to note the following time limits that apply for property applications made to the Federal Circuit and Family Court of Australia:

for de facto partners, any court proceedings for a property settlement must be commenced within two years of separation
after a divorce is finalised there is a twelve-month limitation period within which to bring court proceedings for a property settlement or spousal maintenance

What steps are involved?

As in other areas of family law, parties may come to an agreement between themselves regarding the division of their property. Formalising these arrangements is important to ensure that both parties are protected from potential future claims and to access relevant duty concessions when it comes to transferring certain assets like real estate. Agreements may be formalised through consent orders or a financial agreement.

Consent orders are filed with the court and if the court believes they are just and equitable the court will make the orders, which makes them legally binding. Full financial disclosure is required, and it is important to receive legal advice before agreeing to consent orders.

A financial agreement is a written agreement that operates like a contract between the parties. The agreement does not need to be approved by the court however both parties must receive independent legal advice before entering into the agreement and all formal requirements must be met for it to be legally binding.

If you and your ex-partner agree on how your property is to be divided, we can help you choose the most appropriate way to formalise your negotiations and prepare the documents for you.

What if we don’t agree?

In most cases parties are required to cooperate and make genuine efforts to resolve their differences and take part in dispute resolution processes before proceeding to court. With the help of the parties’ lawyers, this will often result in an agreement in principle which can be documented and, if necessary, endorsed by the court.

If no agreement is reached, or the matter is very complex, going to court may be the only option. If court is necessary, we can provide expert representation and, wherever possible, minimise the issues in dispute to avoid excessive fees.

What does the Court consider?

In determining a division of property, the court typically follows a process:

Identifying the assets, liabilities, and financial resources of the parties. This includes real and personal property, furniture, motor vehicles, investments, cash, shares, and insurance policies. Superannuation is also included and may be split between the parties to give effect to property orders.
Contributions made between the parties are assessed. This includes financial contributions such as assets brought into the relationship and the parties’ respective earnings, and non-financial contributions like the care and welfare of the family, home renovations, etc.
Each parties’ future needs are evaluated taking into account their relative earning capacities, state of health and the need for the primary carer of children to provide a suitable home.
The court will determine, in all of the circumstances of the case as a whole, the orders that are ‘just and equitable’.

If you need assistance, contact [email protected] or call 03 9546 8155 for expert legal advice.