Property Settlement Lawyers

After sharing a life together, it can be difficult to decide how to divide property between you and your former spouse or de facto partner. Our Family Law team can help you protect your interests when it comes to dividing property.

Ultimately, the property you and your former spouse or de facto partner own, or have an interest in, needs to be divided in a way that is fair to you both.

A common misconception is that the Family Court will make a 50/50 split, with both parties entitled to half of the property. This is not the case. Instead, the Courts have developed a fairly rigorous method to work out how to divide the property at the end of a relationship, based on the laws set out in the Family Law Act 1975. The method involves working out what we call contributions and future needs factors. The Court also considers the length of your relationship and if either party has diminished the property pool as a consequence of their choices and behaviour.

Another misconception is that the property to be divided is the property owned at the date of separation. This is untrue. It is the property owned at the time the property settlement agreement is formalised.

Talking with one of our Gold Coast family lawyers who has expertise in Family Law property settlements can help you protect your interests when it comes to dividing property.

Contact our family law team for a free 45 minute no obligation consultation to discuss your family law property settlement matter. At Hickey Lawyers you will have the benefit of our vast Family Law and commercial experience as well as access to our network of accountants and financial advisors to assist you in achieving the best possible result.

What is property?

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.

Disclosure obligations and valuations of property

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.

We have reached an agreement: How do we formalise property matters

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.
Informal 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

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.

Binding financial agreements

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.

Apply for property proceedings

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.

How the court decides a fair and just property settlement

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.

EXPERIENCED LAWYERS

Jill Wolff

Special Counsel

BA, JD, GradDipLP

Jill heads our Family Law area of practice, bringing experience, knowledge and a practical approach to the firm.

+61 (0)7 5556 7439