Property Settlements

Property settlement finalises and separates your financial affairs when a married or de facto relationship breaks down, so that you and your former partner can each move forward into your new and separate chapter of your lives. It determines who is to receive and retain what, and allows each person peace of mind that their future is secured.

A property settlement is intended to fairly reflect the contributions each of you made during your relationship (not just financial but also non-financial such as parenting, caring or support roles), adjusted to take into account the length of your relationship, your current financial position and your future needs.

This is definitely a complex and nuanced area of family law and it is important to get advice specific to you and your circumstances.

Property Settlement Time Limits

A property settlement can happen any time following a separation, however be aware that time limits do apply.

If you were married, there is no time limit for the property settlement,  until you are divorced. Once you are divorced, then you only have 12 months to apply to the Court.

If you were in a de facto relationship, you only have 2 years from the date that you separate to bring any application for Court Orders.

These are firm timeframes, and you can lose your rights if you miss these deadlines.

Experience has shown us that in most circumstances early action is simpler and less expensive. There is no such thing as “too soon” with a property settlement.

Things often become more complicated over time, as you and your former spouse will make more changes in your lives, including potentially entering new relationships, making new purchases and changing employment arrangements. The dynamics of new relationships can make negotiations more difficult and memories of important financial details fade.

How do we work out what is fair?

The first step is to create a list of all of the assets and debts of both parties.

This list isn’t just the “joint” assets and debts. This includes superannuation interests of each party. The list should include everything in your name, everything in your former spouse’s name and everything in the name of any company or trust that you or your former spouse control. It should include the full position of both parties, even if you have agreed not to divide a particular asset. It is important that this list includes everything, because it is only with full knowledge of real financial position that you can make decisions about the overall outcome.

The next step is to consider what lawyers and the Court call the contributions. This is a review of how you got to the financial position you are in. The longer your relationship, the less direct impact these issues have. This is because over time, there are so many decisions that have been made along the way that it is unlikely that any asset has been truly kept separate during a long relationship.

The usual review includes:

  • the initial financial contributions that each of you made (what each of you brought to the relationship)
  • the contributions you made during your relationship (both financial contributions and non-financial contributions)
  • the contributions that have been made since separation by each party.
The final step is an assessment of the future needs of both parties. This involves the review of a long list of factors set out in the Family Law Act, which are broadly speaking, assessing a comparison of earning capacity.

When navigating the complex process of property settlement, it is essential to equip yourself with knowledge and support. As Family Law specialists, we offer a comprehensive understanding of your rights and entitlements and provide guidance throughout the process so you receive all that you’re entitled to.

Married couple agreeing on property settlement

When agreement is reached

If an agreement can be reached between parties, we recommend that is formalised in a legally binding manner so that you can move forward with certainty, ensuring there are no further claims between yourself and your former partner.

There are two ways to make your property settlement legally binding:

  • Financial Agreement
  • Financial Consent Orders

Binding Financial Agreement

A Binding Financial Agreement (BFA) formalises a property settlement, providing a legally binding framework that establishes clear terms regarding the division of assets, liabilities and financial resources.

Binding Financial Agreements are appropriate when there is mutual agreement on the Property Settlement and both parties want to maintain control over the outcome, without resorting to Court intervention.

A BFA does not need to be approved by the Court, but each party needs to have obtained legal advice before entering into the agreement to ensure it is properly drafted, meets all legal requirements and safeguards your interest.

Financial Consent Orders

Financial consent orders are a legally binding and enforceable framework for the division of assets, liabilities and financial resources.  They outline the agreed-upon terms of the property settlement including the distribution of assets, superannuation, debts and any ongoing financial obligations such as spousal maintenance or child support. 

Once approved by the Court, both parties are legally obligated to adhere to the terms.

As experienced family lawyers, we ensure that the orders accurately reflect the intentions and agreement of both parties, comply with legal requirements and protect the interests of our clients. Working with a family lawyer provides peace of mind that the property settlement is properly formalised and legally enforceable.

Taking the first step can be challenging, particularly if you are not sure if you even need legal advice or assistance. We’re happy to help you get clear about those things.

We offer a free 30-minute phone consultation, during which we ask key questions, share information and recommend a strategy as you move forward.