PROPERTY SETTLEMENT

Dealing with the complexities of a family law property settlement is stressful, but the consequences of not properly finalising your property affairs can impact the rest of your life. We are experienced family lawyers and will protect your legal rights to ensure that you get the best possible representation and outcome in your specific circumstances.

What is a family law property settlement?

A family law property settlement involves the division of assets, financial resources, and liabilities between a couple whose relationship has broken down. It legally finalises their financial affairs so each may move on with their respective financial lives. Property includes a range of assets and resources for example:
  • real estate
  • bank accounts and cash
  • motor vehicles
  • trusts
  • superannuation
  • business and company interests
  • inheritances
  • loans and debts receivable

Why should you formalise a family law property settlement?

Informal arrangements regarding the division of your property are not legally binding so will be difficult to enforce. They can also leave the parties vulnerable to future claims and are unlikely to facilitate certain duty concessions that might otherwise apply when transferring assets such as real estate.
No matter how amicable your relationship is with your ex-partner, it is important to obtain independent legal advice and formalise your arrangements in a binding document such as consent orders or a financial agreement.
People who are vulnerable to financial abuse, undue influence, or pressure, are at risk of settling for an unfair or unreasonable settlement, so it is important to obtain professional advice to ensure your legal rights are protected and that you receive all that you are entitled to.

Do you have to be divorced to split your property?

You do not have to be divorced to start making arrangements with your ex-partner to split your property, and most property settlements can be finalised without having to go to court. It is important however to note the time limits that apply for making a property or spousal maintenance application, namely:

  • within twelve months after a divorce
  • within two years after a de facto relationship has ended
There are very limited circumstances where the court may grant leave for an application to be made outside these time limits.
By agreement
If parties have agreed to terms regarding how their property is to be divided post-separation, they may formalise their agreement by either:
  • An Application for Consent orders that is filed with the court on application by the parties. Full disclosure is required in the application for consent orders and, if the court believes they are just and equitable, the orders will be made legally binding; or
  • financial agreement that is a written formal agreement between the parties. The financial agreement must comply with certain formal requirements prescribed by legislation to be enforceable. The court is not involved in making or approving the orders however each party must receive independent legal advice before entering into the agreement and full and frank disclosure should be made.
What if we can’t agree?
Property and maintenance proceedings may be issued if either party is ordinarily resident in Australia or is an Australian citizen when the application is filed. The court may decline to exercise jurisdiction if there are proceedings pending in another country.
If you cannot agree on how to divide your property, you may need to start court proceedings. There is an established process that courts will take where there is a disagreement over how property should be split, and the court must be satisfied that parties have made a genuine attempt to resolve matters between themselves.

If you are already divorced and are considering making an application for property proceedings, you must do so within 12 months of the divorce orders becoming finalised.

Upon filing an application with the court, you will be given a first hearing date. The matter will initially be heard before a Registrar to assess whether parties have satisfied their pre-action procedure steps. If the parties have not complied with those steps, the Registrar may make orders to provide an opportunity for compliance with those steps, including any orders for a mediation.
Upon filing an application with the court, you will be given a first hearing date. The matter will initially be heard before a Registrar to assess whether parties have satisfied their pre-action procedure steps. If the parties have not complied with those steps, the Registrar may make orders to provide an opportunity for compliance with those steps, including any orders for a mediation.
A further hearing date may be set to determine the schedule or procedure for parties to follow for the matter. The court may require parties to file any further evidentiary material, provide an update to the court about the parties’ current circumstances, give time to file subpoenas and obtain formal sworn valuations and reports.
The court will set a date for a trial and a Judge or Senior Judicial Registrar will make orders that are legally binding and enforceable on parties.
The division of property is not determined purely on the legal ownership of assets. Courts will make consideration to the following:
  • The parties’ initial contributions to the marriage and what they may have brought into the relationship;
  • A determination of the parties’ assets, liabilities and financial resources;
  • The parties’ financial and non-financial contributions during the marriage, including income, home duties, parenting contributions, inheritances;
  • What may be a parties’ future needs, including capacity to earn money, their health and parental responsibility;
  • What is just and equitable to both parties.

Spousal maintenance

Spousal maintenance is financial maintenance that one party from a former relationship provides to the other party to ensure appropriate financial support where the other party may have a lower income or earning capacity. It applies to both marriages and de facto relationships. Orders can be made on an urgent, interim, or final basis and can provide for payments to be made periodically (for example, fortnightly or monthly) or in a lump sum.

A spousal maintenance application requires careful preparation, and specific financial documents will be required as evidence. If you believe you may be eligible for spousal maintenance, we can assess your circumstances, and help you make an application.

Islamic marriage laws and procedure

We have lawyers with a thorough knowledge of and expertise in Islamic marriage law and procedures. We can assist you by preparing Mahr Agreements, resolving disputes about Mahr after separation, preparing Binding Financial Agreements and help with your Islamic Divorce to ensure a smooth finalisation.

We can help

Dealing with the complexities of property settlement is stressful but the consequences of not doing it properly can impact on the rest of your life.
We are experienced negotiators and will make sure that you get the best possible representation and outcome, taking into consideration your full circumstances, cultural sensitivities within the legal framework.
If you need assistance, contact one of our lawyers at [email protected] or call 1800 99 31 32 for expert legal advice.