Property Settlements

When a relationship or marriage breaks down, you and your partner will need to determine how your property will be divided between you both, and your financial affairs moving forward.

It is important to understand a family law property settlement is not determined purely on the legal ownership of property or financial contributions made, but rather all the ways in which you have both contributed to the relationship, as well as your future needs.

A property settlement involves dividing between you both, your assets, financial resources, and liabilities. It legally finalises your financial affairs with each other and allows you both to move on financially independent of one another.

When can I obtain a property settlement?

You can make arrangements to split your assets, financial resources and liabilities as soon as you separate from either your spouse or de-facto partner. If you are married, you do not have to wait to be divorced.

It is important to be aware, if you and your spouse or partner cannot reach an agreement to divide your assets, time limitations apply for property applications in the Federal Circuit and Family Court of Australia.

If you are not married and in a de-facto relationship, then you must commence proceedings within two years of your final separation. If you are divorced, then proceedings must be commenced within 12 months from your divorce becoming final.

What can be included in a property settlement?

A property settlement can include a range of assets and financial resources, including real estate, cash, shares, motor vehicles, furniture, business interests, superannuation, and trusts.

A property settlement will include property you or your partner entered the relationship with, property acquired during the relationship, and property either of you have acquired after you separated.

What steps are involved?

If you and your former partner are able to reach an agreement to divide your assets between you both, then those agreements can be formalised without having to attend Court. Under the Family Law Act, you and your spouse can formalise your agreement one of two ways:

1. Consent Order which is filed in the Court. The Court must be satisfied the agreement reached between you both is just and equitable. Provided the Court is satisfied the agreement is fair, the Court will issue the Consent Order and it will be legally binding on your both.
2. A Financial Agreement is a written document between you both which complies with certain formal requirements. The Family Law Act requires you and your former partner to both receive independent legal advice before entering into a Financial Agreement. Provided all formal requirements are met, the Financial Agreement will be legally binding on you both.

If you and your former partner are unable to reach an agreement as to the division of your assets and your matter goes to Court, the Court will consider and weigh the following factors:

1. What are the assets, liabilities and financial resources of you both?
2. What direct and indirect financial contributions did each of you make?
3. What non-financial contributions were made by each of you to the relationship?
4. What are each of your future needs, considering your earning capacities, state of health, education and responsibilities as primary career of any children you may have?
5. What is just and equitable when considering all the circumstances?

Dealing with the complexities of a property settlement can be stressful, however if not done properly this may considerably impact your financial future.

Even if you are on good terms with your former partner, it is important to obtain legal advice to protect your interests moving forward.

If you need any further assistance please contact [email protected] or call (07) 5536 1140 for a no-obligation discussion and for expert legal advice.