Property Settlement – Your Questions Answered

 

If your marriage or de facto relationship ends, a property settlement is essential for distributing property between you and your former partner.

Before embarking on negotiations for a property settlement or signing any agreements, it is advisable to seek legal advice. Our experienced family lawyers can help ensure a fair division of your assets when your relationship concludes.

 

Is the law the same for married and de facto couples?

 

Whether you are married or in a de facto relationship, property settlement laws apply equally to both when separation occurs. Different legal rights apply to de facto partners who separated before 1 March 2009 and consulting with a lawyer in this instance is recommended.

 

When should I start my property settlement?

 

Property settlement can commence as soon as separation occurs, and it is not a requirement for married couples to obtain a divorce before pursuing a property settlement. It is generally preferable to resolve property matters before initiating the divorce process due to period of separation required before a divorce can be obtained.

 

What is the time limit for my property settlement?

 

 

Married couples must finalise their property settlement within 12 months from the date of their divorce.

De facto couples must finalise their property settlement within 24 months (2 years) from the date of their final separation.

The above time limits are strictly enforced by the Court.

 

How do we decide what we each get to keep?

 

The Court adopts a four step process in deciding how to distribute property between separated partners.

First, the asset pool that is available to divide between you needs to be determined.

Next, the contributions you each made need to be reviewed.  Contributions can be financial (such as wages, inheritances) or non-financial (such as parenting and home making).

Then, the future needs of each of you as well as the future needs of any children under 18 are considered.

Finally, looking back on all of the contributions and future needs and property available to distribute consider what distribution would be fair and equitable to both parties.

Learn more about the four step process here.

 

What property should we include in our asset pool?

 

Your asset pool should include all of your assets (that is things you own) and all of your debts (that is things you owe money on).

Your asset pool might include:

– real estate (such as the home you live in or any investment properties);

– cars and other vehicles;

– cash in bank accounts;

– shares and other investments;

– superannuation entitlements;

– household furniture and personal effects;

– debts such as mortgages, credit cards, personal loans, car finance.

Property that is in your name, your partner’s name or in joint names should be included in the asset pool.

 

What information should I prepare for my lawyer?

 

A list of your asset pool including how each asset or debt is currently owned and the value you give each item of property is a great starting point.

You could also prepare a history of your relationship that includes details like:

– the date you and your partner started living together;

– the date you married (if applicable);

– the names and ages of any children under 18;

– the date you separated;

– the date you divorced (if applicable);

– the property each of you had when you got together;

– whether property was bought or sold during the relationship;

– details of each party’s income and work history;

– details of any period of parenting leave and parenting responsibilities;

– details of any inheritances or financial windfalls received by either party.

 

We have an agreement, what should we do next?

 

You should have your agreement formalised into a legally binding arrangement by obtaining Consent Orders. 

The Federal Circuit and Family Court of Australia has a do it yourself kit you can download from the Court website.  However, the kit does not include a draft Minute of Order.  It is important that the Minute of Order is drafted correctly to ensure the Consent Orders correctly reflect the terms of your agreement. 

Before you apply for Consent Orders you should obtain legal advice from a family lawyer about the terms of your agreement. 

Learn more about Consent Orders here. 

Our experienced family lawyers have helped hundreds of clients complete their Consent Orders.  Find out about our fixed fee services here.

 

We don’t agree, what should I do?

 

You should each obtain legal advice and try to negotiate an agreement with the help of your lawyers.

If negotiation is unsuccessful, you could consider attending mediation to try to reach agreement.

If you are still not able to agree, you can apply to the Court for a Judge to decide how to distribute your asset pool.  If you were married, you must start proceedings before 12 months has passed since your divorce.  If you were in a defacto relationship you must start proceedings within 2 years from the date of your final separation.