Property Settlement

When a married or de facto couple separate, they usually need to complete a property settlement.

• The parties being in control of the outcome;
• A quicker process;
• The legal costs are generally far less than Court litigation;
• The agreement is formalised by the Court and prevents your former partner making a claim against your assets in the future – all this can happen without you or your Lawyer being required to attend Court; and
• Stamp duty and other concessions where assets are being transferred.

However, in some circumstances, Court litigation may be required.

What is the 4-step process?

• Step 1: Working out the property pool

  This step involves listing all assets and liabilities owned by the parties either individually, jointly or within an entity, as well as their current real market value;

• Step 2: Contributions are assesssed

  Contributions are assessed to determine whether one party made greater contributions than the other, or whether contributions were relatively equal.

  Many different contributions are considered, including income, as the primary caregiver of children, as the primary homemaker, receiving an inheritance or renovating a property. The timing of contributions is also relevant – whether an asset was acquired prior to the relationship, during or post separation will be considered;

• Step 3: Future Needs

  This step assesses each party’s circumstances to determine whether one of them may have greater future needs than the other. If they do, they may be entitled to receive more of the property pool.

  Some examples include:

  • If there is an age discrepancy – the older party has less years ahead of them to work and earn an income, including superannuation;
  • If one party has health issues which limit their ability to work and the other party enjoys good health and a high earning capacity, this is relevant; or
  • If one party has the greater share of care of the children;

• Step 4: Outcomes are to be ‘just and equitable’ – in plain English – fair.

  Whether by agreement (Consent Orders) or by Court Order, to formalise your property settlement in the eyes of the Law and prevent the risk of your former partner making a claim against your assets in the future, the Court must approve your agreement as being just and equitable (fair). An experienced family lawyer can advise you on your likely entitlement and guide you to achieve an outcome that is fair in the eyes of the Law.

When should you start this process?

• The property settlement process requires all assets, even those acquired after separation, to be included in the property pool;
• Both parties are required to disclose to each other their income, assets and financial resources until their property settlement is formalised;
• Time limits also apply – for de facto couples, the time limit expires 2 years after the date of separation. For married couples, the time limit expires one year after the date a divorce order comes into effect.