Family Law Property Settlements
Whether you are separating from your spouse or de facto partner, working out how your property and finances should be divided can be a complex and sometimes contentious process. The division of property should not be determined purely based on legal ownership or financial contribution but should take into consideration the ways that each person contributed to the relationship and their respective future needs. It is also important to understand the future financial consequences of a proposed property settlement, for example, it may be more advantageous to hold onto one type of asset over another. We can help you formalise your property settlement and will always aim to do this in the least adversarial way possible and without having to go to Court.
What is a Property Settlement?
A property settlement involves dividing assets, financial resources, and debts between a couple whose relationship has broken down. It legally finalises their financial affairs and enables them to move on with their respective financial lives. You do not need to be divorced before finalising your property affairs and de facto couples are also eligible for a property settlement under family law legislation.
What is included in a Property Settlement?
Property includes a range of assets, financial resources, and liabilities, for example:
- Real estate
- Bank accounts and cash
- Cars
- Trusts
- Superannuation
- Business interests
- Inheritances
- Loans and debts
- Credit facilities
What steps are involved?
You can come to an agreement about how to divide your property and have your negotiations finalised without going to Court. However, even if you and your ex-partner are amicable and agree on the division of assets, it is important to have your arrangements formalised so they are legally binding and protect both of you from future claims. A property settlement can be formalised through consent orders or a financial agreement.
Consent orders are filed with an application to the Federal Circuit and Family Court of Australia. If the Court believes they are just and equitable the Court will grant the orders, which makes them legally binding. You will not usually have to attend Court to have the orders granted but it is important to receive legal advice before agreeing to consent orders.
A financial agreement works like a written contract between the parties setting out how their property matters will be finalised. Both parties must receive independent legal advice before entering the agreement and a number of formal requirements must be met for it to be valid. However, because the Court is not involved in approving the agreement, it is considered that consent orders are a more formal approach to finalising a property settlement after a relationship ends. Getting advice from an experienced family lawyer can help you make an informed decision.
Going to Court
The Federal Circuit and Family Court of Australia can hear an application for property orders if parties are unable to agree on a property settlement. While court proceedings are generally considered a last resort, some matters simply cannot be resolved through negotiation or mediation, or involve layers of complexity.
There is no set formula for the distribution of property in Australia and, if a matter does go to Court, the following factors will be considered:
- the parties’ assets, liabilities, and financial resources
- the parties’ respective direct and indirect financial contributions
- the parties’ non-financial contributions to the relationship
- the parties’ future needs, considering their relative earning capacities, state of health, education and responsibilities as primary carer of any children
- a just and equitable division of property in consideration of all the circumstances
Spousal Maintenance
Spousal maintenance means that one person from a former relationship (marriage or de facto) provides financially for the other. An application for spousal maintenance is typically made when there is an imbalance between the former spouses’ capacity to support themselves financially. For example, there may be a disparity in income because one party was the primary breadwinner during a relationship, while the other gave up career opportunities to contribute in other ways.
If you are not in a position to support yourself after you separate, and your former partner is in a financial position to do so, you may be eligible for spousal maintenance.
An application for spousal maintenance is made to the Federal Circuit and Family Court of Australia. The applicant must show that they are unable to adequately support themselves and that their former spouse or partner is in a position to contribute to them financially after meeting their own reasonable living expenses. Supporting evidence is required and strict time limits apply so it is important to discuss this option with your family lawyer promptly.
If you need assistance, contact [email protected] or call 03 9741 3777 to arrange a consultation with an experienced estate planning lawyer in Werribee.