Property Settlement Lawyers

When making property settlement orders, the Court considers the property that each party brought into the relationship, along with the property purchased or acquired during the relationship and after separation.

A property pool includes things such as:

• any house or land, including the former family home or an investment property
• a business, company or trust
• cash and bank accounts
• any debts such as mortgages, loans, tax or stamp duty obligations
• cars, caravans and boats
• superannuation entitlements
• gifts, inheritances, lottery wins, compensation and insurance policy payouts
• furniture and household items, including jewellery
• shares

Keep in mind that it does not matter whether the property is in joint names or just one person’s name or is held with other people. All assets and debts are included in the property pool to be distributed fairly.

Both parties have an ongoing obligation to provide each other with financial disclosure, and to make sure all valuations are current until they negotiate a settlement through a Binding Financial Agreement or final Orders are made – whether by a Court or by consent.

If you and your former spouse or de facto partner have been able to reach an agreement without the Court’s assistance, there are three options:

1. Informal Agreement;
2. Consent Orders; or
3. Financial Agreement.

You are not required to have a formal agreement or go to Court when you are dividing property between you and your former spouse or de facto partner.

However, keep in mind that an informal agreement will not be legally binding and can be very risky. This means that if either you or your former spouse or de facto partner fail to follow the terms of the agreement, there is no way to enforce those terms.

Ultimately, entering into an informal agreement means:

• you may not receive what you are entitled to or have agreed to receive; and/or
• one of you could bring an application with the Court to commence proceedings at a later date, provided it is within the relevant time limitations (12 months after Divorce Order is made or 24 months after end of your de facto relationship), or you are granted leave by the court to issue the proceedings outside of time due to extenuating circumstances that caused the delay and provided the court does not consider there will be hardship to the other person if they allow it.

Consent Orders can deal with any financial matters, including spousal maintenance matters, the splitting of superannuation and the transfer or sale of any property.

You can put the terms of your agreement into Consent Orders, which are governed by the Family Law Act 1975, by filing an Application for Consent Order and Minutes of Orders.

The Registrar of the Court will review the terms of the agreement and, if considered to be fair to both parties in the circumstances, will make the Orders binding. The parties do not need to attend Court however both parties will be bound by the terms of the agreement and neither party will be able to make a future claim on the property.

The terms of the agreement can be put into a Binding Financial Agreement, which is also governed by the Family Law Act 1975. The Court does not approve of, or review, Binding Financial Agreements and there is no requirement for the net asset pool to be divided in a just and fair way.

• before entering into a marriage or a de facto relationship (sometimes called “prenuptial agreements” or a “prenup agreement”, but the legal term is financial agreement)

Both parties are required to obtain independent legal advice prior to signing a Binding Financial Agreement. The document must also be drafted to comply with certain requirements for it to be legally binding. If it is legally binding it can be enforced by the Court.

If you cannot reach an agreement on how to divide the assets of the marriage or de facto relationship, then you can make an application to the Court to commence proceedings for property settlement matters, including spousal maintenance. This can be a complex, costly, time consuming and emotionally draining process so you should only consider commencing proceedings if there is no likelihood that an agreement will be reached outside of Court.

If the Family Law Courts are satisfied that it is just and equitable to make an order in relation to the property of the parties, it works through a four step process to determine the appropriate outcome in a matter and the subsequent property orders to be made.

1. Asset Pool – Identify and value the net asset pool (i.e. all assets, liabilities and superannuation entitlements) of the parties that is available for distribution.
2. Contributions – Section 79(4) Family Law Act 1975 Identify the contributions (i.e. financial, non-financial and parent and/or homemaker contributions) which were made at the commencement, during and at the end of the relationship.
3. Future Needs Factors – Section 75(2) Family Law Act 1975 Identify the future needs and resources factors (i.e. aged and health, income, care for and financial support of a child/ren, length of the relationship, etc.) of the parties.
4. ‘Just and Equitable’ Outcome – Section 79(2) Family Law Act 1975 The Court shall not make an Order, unless it is satisfied that, in all the circumstances before the Court, it is ‘just and equitable’ to make the Order.

Next Step

The Court may also make Orders for maintenance of a party, as it considers “proper” when it makes any final Orders for property settlement. Such Orders can be way of a lump sum, a periodic amount or the transfer of a specific asset to one of the parties of the relationship.