How to Formalise a Property Settlement

In the video, I explain why formalising a property settlement is one of the most important steps you can take after separating from a partner. I’m Bruce Provan of Page Provan Family and Fertility Lawyers in central Brisbane, and I want to share the same practical advice here in written form so you have a clear roadmap to protect your financial future.

Why formalise a property settlement?

A property settlement is simply the process of dividing assets, liabilities and superannuation between a couple after separation. That sounds straightforward, but leaving a settlement informal — whether by handshake, a private agreement with no legal documentation, or simply “moving on” without sorting finances — can create major problems years later.

“If there’s no property settlement order or a binding financial agreement, there’s nothing to stop your former partner or spouse, sometimes even years later, coming back and having another go and saying that they want some of your assets or some of your superannuation.”

That’s not theoretical. Courts have granted leave in unusual circumstances for someone to bring a claim decades after separation. In one case a former spouse successfully applied for a property settlement 23 years after the divorce. In another, a couple separated when they had very little, and after the husband later won a substantial lottery prize the former partner applied for a share of that windfall and was entitled to part of it. These examples illustrate a simple truth: assets acquired after separation can still become part of a property settlement if the settlement was never formalised.

What gets divided in a property settlement?

A property settlement typically covers:

• All assets (real estate, investment portfolios, bank accounts, vehicles, business interests)
• Liabilities (mortgages, loans, credit card debt)
• Superannuation balances
• Income and earning capacity factors that impact future needs

When preparing a settlement you will be expected to provide a clear picture of each party’s financial position: a list of assets and liabilities, statements showing superannuation balances, tax records, payslips, and other supporting documents. Transparency is essential to make any agreement durable and enforceable.

Two primary ways to formalise a settlement

There are two commonly used legal avenues to formalise property settlements in Australia: consent orders (court‑based) and binding financial agreements (private, out‑of‑court). Both methods make the arrangement legally enforceable and help protect you from later claims.

1. Consent orders (the most common approach)

Consent orders are the usual way couples formalise a property settlement. They require lodging two documents with the Federal Circuit and Family Court of Australia:

• The application for consent orders — this document sets out each party’s assets, liabilities, superannuation, income and other relevant financial information.
• The draft consent orders — this is the legal wording of the agreement itself, written in the format the court uses.

Once the court approves and signs the consent orders, they become a court order. That means the agreement has the force of law and is enforceable. Consent orders provide a high degree of finality because they are overseen by the court; if properly prepared, they reduce the risk that one party can later reopen the settlement.

2. Binding Financial Agreements (BFAs)

A Binding Financial Agreement lets parties make a private, contractual settlement without going through the court. These agreements can be tailored to particular needs and can address future circumstances if crafted carefully.

Key features of BFAs:

• They do not need to be lodged with or approved by the court.
• For a BFA to be binding, both parties must receive independent legal advice. Each party should have their own lawyer who certifies that the person has received that advice.
• They can be more flexible and faster in some situations, but must be carefully drafted to avoid uncertainty or later challenges.

BFAs are useful where privacy is important, where parties want certainty without court involvement, or where an agreement must cover specific contingencies. However, because they avoid court scrutiny, they must be drafted precisely and include all necessary disclosures to stand up if challenged later.

Which option is right for you?

There is no one-size-fits-all answer. The right option depends on the complexity of your finances, your relationship with your former partner, the level of finality you want, and whether you want to avoid court. Broadly:

• Consent orders are often preferable when you want certainty and a clear court-endorsed resolution.
• Binding financial agreements can work well where parties are amicable, want privacy, or require tailored terms not suited to standard court orders.

Because the legal requirements and the consequences of an imperfect agreement can be significant, I always recommend obtaining professional legal advice before signing or lodging any agreement.

Practical steps to formalise your property settlement

If you and your former partner have reached an agreement about dividing property, take these practical steps to make it binding and to protect yourself from later claims:

1. Document everything: Prepare a complete list of assets, liabilities and superannuation with supporting evidence (bank statements, valuations, loan statements, super balances).
2. Get independent legal advice: Each person should obtain independent legal advice about the implications of the agreement and the best method to formalise it.
3. Choose the method: Decide whether consent orders or a binding financial agreement suits your situation, based on legal advice.
4. Prepare the paperwork: For consent orders, a solicitor will draft the application and the draft orders for lodging with the court. For BFAs, each party’s lawyer will draft and provide advice and certificates.
5. Lodge or sign: Lodge consent orders with the court or sign the BFA after both parties have received independent legal advice and their lawyers have provided the necessary certificates.
6. Keep records: Maintain copies of all documents, signed agreements, independent legal advice certificates and correspondence.

Common misconceptions and pitfalls

People often assume that because they have lived separately for a long time, or because they made an informal agreement at the kitchen table, that everything is settled. That’s risky. A few points to keep in mind:

• Informal agreements are not necessarily binding. Verbal agreements or informal written notes rarely provide the legal certainty of consent orders or properly executed BFAs.
• Assets acquired after separation can be included. In some circumstances, assets obtained after separation — such as a large inheritance or a lottery win — have been successfully claimed by a former partner if there was no formal settlement.
• There can be time limits, but relief is possible. There are statutory time limits for bringing applications (for example, married parties generally have a limited period after divorce to apply), but courts can grant leave to apply outside those periods in exceptional cases. Don’t rely on vague assumptions — ask a lawyer.
• Full disclosure matters. Any binding agreement should include full financial disclosure. Concealing assets or failing to disclose material facts can be grounds to challenge an agreement later.

Costs and timelines

While everyone’s situation is different, formalising a property settlement is not usually a prohibitively expensive process, especially compared to the financial risk of leaving things informal. Costs will depend on the complexity of your assets, whether property valuations or forensic accounting is required, and whether negotiations are contested.

Consent orders can take several weeks to prepare and lodge, plus whatever time the court needs to process them. Binding financial agreements can often be prepared more quickly but require each party to obtain independent legal advice, which takes time and incurs legal fees.

Getting legal advice early can avoid expensive disputes later. In many cases, a relatively small investment now prevents a much larger claim years down the track.

Final thoughts — protect your future

Formalising a property settlement is about more than completing paperwork. It is about protecting your financial position, securing certainty, and preventing the possibility that a former partner might return years later to seek a share of assets you assumed were private. The law provides clear mechanisms — consent orders and binding financial agreements — to turn an informal understanding into a legally enforceable arrangement.

If you have reached an agreement with a former spouse or partner, or if you’re unsure where you stand financially after separation, seek legal advice. A properly drafted and executed settlement gives you peace of mind and real protection. If you’d like assistance, our practice at Page Provan Family and Fertility Lawyers can help you understand your options, prepare the necessary documents, and ensure any agreement is legally sound.

My name is Bruce Provan, and I’ve seen the consequences when property settlements are left informal. Take steps now to formalise your settlement and protect your financial future.