Property Settlement

Stress Free
Settlement

family and fertility lawyers

When contemplating the most important financial decision of your life, it is important to make the right decisions. It is essential to also have a final deal that ends the possibility of claims against you for years to come.

If you separate or are contemplating separating from your spouse or partner, it is important that you get prompt advice regarding the division of the property you own, either jointly or individually. Obtaining advice early won’t be expensive and will give you peace of mind and may put you in a stronger negotiating position.

We also prepare and advise on Binding Financial Agreements for those about to be married or enter a de facto relationship, or are in an intact relationship who want certainty about the division of property should they separate or pass away.

Trying to avoid going to court

Most divisions of property can be resolved through negotiation or alternative dispute resolution rather than a hearing in court. The alternatives to resolving matters through court are explained in the attached brochure on alternate dispute resolution. Even of those matters that start in court, only about 5% proceed all the way to a trial before a judge.

The Property Settlement Process

In advising you, we are guided by the five-step process that the courts apply in determining property settlement disputes. That is explained in the attached brochure. In some situations, it is necessary to protect your assets by applying to the court for an injunction to prevent your former spouse from dealing with certain property. We can also advise you about your entitlement to or liability for spouse maintenance and child support.

Advice On Property Settlement

We can advise you on all aspects of property settlement including:

International property

While working alongside international colleagues as part of a team for you.

Division of superannuation

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Family companies and trusts

Business relationships

Tax issues

Resolving Your Property Settlement Dispute

If you do reach an agreement with your former partner, it is important that it is properly formalised by way of consent orders, binding financial agreement and/or child support agreement. What form the agreement will take will depend on your individual circumstances.

Having a final property settlement that is properly formalised will usually prevent your former partner from being able to make a further claim against you later.

Ready To Resolve Your Dispute?

We work to resolve your property dispute quickly and amicably

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Property Settlement FAQ’s

How do we advise about a property settlement claim?

We advise about your property settlement entitlement based upon the five step process the court would use. That five step process is set out in the attached brochure. Each relationship in every family is different and the court has a wide discretion in making property settlement orders and outcomes can vary considerably from case to case.

Does the Family Law Act apply to de facto and same-sex couples?

Yes. Since 2009 the Act applies to such couples. What is a de facto relationship is defined in the Act as being a relationship between two people (whether the same sex or opposite sex) who are unmarried and unrelated but have been living together on a “genuine domestic basis”. The court looks at a number of criteria to determine whether a couple has been living together on a genuine domestic basis.

However, to have an entitlement to some of the property of the other party, it is necessary to establish that they:

have been living together for a period of at least 2 years; or
have a child together; or
have made substantial contributions to the acquisition, conservation or improvement of any of the property of the parties; or
the failure to make an order would result in a serious injustice.

Is superannuation included in the pool?

Yes. Since 2002 superannuation has been treated as property and can be distributed between the parties like other assets. The court has the power to make orders to distribute superannuation interests. Sometimes superannuation will be distributed in different proportions to other assets.

What is spouse maintenance?

Spouse maintenance is money required to be paid by one spouse to the other in circumstances where the receiving spouse is unable to support themselves adequately following separation. In determining spouse maintenance, the court must take into account a range of criteria including whether one party has a need for the other to financially support them and the capacity of the other spouse to provide financial support for them.

Will assets I acquire or income I earn after separation be included in the pool?

In most cases yes. The court will generally consider the property of the parties at the time of agreement or date of trial. This means for example money received from a post separation inheritance can be included in the pool as can any income earned and saved post separation.

However, in determining what is the appropriate division of property the court will consider what assets have been contributed post separation and any change of values since the separation.