PROPERTY DIVISION BETWEEN SEPARATING COUPLES

We provide specialist advice with respect to all facets of the division of property between separating couples, whether they were married or de facto, as well as spousal maintenance.

We can advise you about how property settlement works and what would be a fair outcome for you, including your entitlements and obligations.

We can work with you towards achieving a fair resolution with the other party without the stress and cost of litigation, whether this is through negotiations directly with the other party or participating in mediation to try and resolve the outstanding issues.

If negotiations are unsuccessful, our highly skilled lawyers can represent you in Court including the procedural steps as well as appearance in Court.

If you have been served with Court documents, we can assist you to navigate the Court documents, court practices and procedures and assist you to resolve the matter with minimal further litigation.

Where the parties have an agreement, we advise as to whether those agreements are fair, and assist the parties to enter into an agreement or court orders which will make that agreement legally binding. You should note that agreements that do not meet the strict requirements set out under the Family Law Act are not binding, and leave open the possibility of either party asking for a further share of property or superannuation (even if both parties signed a document, and even after property has been distributed).

If you have any questions, please contact us or book an appointment for a free 30 minute consultation with our specialist family law team

See us about:

  • Divorce;
  • De facto Issues

Financial Issues including:

  • Property Division – divorcing couples as well as de facto relationships
  • Dividing (or “splitting”) Superannuation, including self-managed superannuation funds
  • Spousal maintenance
  • The effect of Family or Unit Trusts and "Pre-Nuptial" Agreements on property entitlements

Urgent applications when:

  • One party is out of time to bring an application
  • One party is trying to hide or dispose of property
  • Spousal maintenance is required

Agreements for property settlement

When everyone is in agreement, and you just want to record and make that agreement binding and final:

  • Consent Orders
  • Financial Agreements

Taxation Issues

The implications upon Family Law settlements of:

  • GST
  • Income Tax
  • Capital Gains Tax
  • Stamp Duty

Existing Orders

  • Changes to existing orders
  • Enforcing orders when one party is not complying

Consent Arrangements

When everyone is in agreement, and you just want to record and make that agreement binding and final:

  • Consent Orders
  • Binding Financial Agreements
  • "Pre Nuptial" agreements

Agreements for property division can be made legally binding (and should be!)

Please don’t hesitate to Book an appointment for a free 30 minute initial consultation with one of our specialist family lawyers or by calling us on 5576 9999.

If you need help with property settlement

Once you reach an agreement about how to divide up the assets, superannuation and debts of you and your ex, this is not legally binding for enforceable unless you formalise this. You can formalise your agreement to property division or property settlement in a legally binding way, whether you were in a marriage or de facto relationship, by entering into a;

  • Consent Order; or
  • Financial Agreement

Both documents will financially separate you from your ex. Unless you formalise the agreement in one of these ways, either you or your former spouse or partner can still apply to the Court for property settlement (right up until the time limit).

Some of the key features of these documents are; 

What is a Financial Agreement?

  • This is a contract signed by both parties as to how the assets, liabilities and superannuation of the parties is divided between them.
  • Th Financial Agreement is not filed in Court at any stage.
  • You must both have independent legal advice from a solicitor before you sign the Financial Agreement.
  • You can include a superannuation agreement which provides for the splitting or transfer of superannuation between partners.
  • The Financial Agreement is binding once you both sign.
  • You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief
  • The Financial Agreement can be enforced in Court

What is a Consent Order?

  • This is an Order made by the Court based on the consent, or with the agreement, of the parties.
  • Documents are filed in Court which are signed by both parties to show they are agreed (“by consent”).
  • The Court will grant the Order if it considers the order “just and equitable”.
  • The parties are not required to have solicitors (though we recommend you have a solicitor prepare the court documents as the Order itself is particularly complex).
  • You can include Orders for superannuation splitting, ie the transfer of superannuation from one partner to another.
  • The Order is binding once it is granted by the Court.
  • You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief
  • The Consent Order can be enforced in Court.

What is a Financial Agreement?

What is a Consent Order?

  • This is a contract signed by both parties as to how the assets, liabilities and superannuation of the parties is divided between them.
  • This is an Order made by the Court based on the consent, or with the agreement, of the parties.
  • Financial Agreement is not filed in Court at any stage.
  • Documents are filed in Court which are signed by both parties to show they are agreed (“by consent”).
  • The Court will grant the Order if it considers the order “just and equitable”.
  • You must both have independent legal advice from a solicitor before you sign the Financial Agreement.
  • The parties are not required to have solicitors (though we recommend you have a solicitor prepare the court documents as the Order itself is particularly complex).
  • You can include a superannuation agreement which provides for the splitting or transfer of superannuation between partners.
  • You can include Orders for superannuation splitting, ie the transfer of superannuation from one partner to another.
  • The Financial Agreement is binding once you both sign.
  • The Order is binding once it is granted by the Court.
  • You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief
  • You can receive exemptions, such as from transfer duty for the transfer of property, and CGT rollover relief
  • The Financial Agreement can be enforced in Court
  • The Consent Order can be enforced in Court.

What is property settlement and how does it work?

Property settlement is the process of identifying the “property pool” and dividing that up fairly between you.

Please feel free to download our free brochure on property settlement: Property Settlement (v2)

What is the property pool?

The property pool is all of the assets, superannuation and debt of the parties to a relationship or marriage, whether in sole or joint names, at the current date.  There is a common myth that property settlement means dividing up what you had jointly when you separated.  This simply isn’t the case. This is why we recommend sorting out your property settlement as soon as you can.

What if I don’t know what property my ex has or I suspect they are hiding property? Do I have to give my ex financial documents?

Both parties, even during negotiations, have an obligation to provide full and frank disclosure of their financial circumstances to each other.

If there is a dispute about the value of something, we can assist to obtain valuations to settle the dispute or look at what other documents are necessary to determine the value.

If this is not taking place, there are steps we can take within Court proceedings to obtain financial documents.

How is the property pool divided up?

There is no automatic 50% / 50% division in Australia. If the Court considers it appropriate for there to be property settlement, then the Court uses a 4 step process to determine what each person should get in property settlement. This is what we use to advise you as to what your entitlement may be if the matter went to court and what is a fair outcome for you.

When determining the percentage each of you should receive from the property pool, the Court will consider;

  • the contributions each of you has made (this includes not just financial contributions but non-financial contributions as well such as homemaking and caring for children);
  • the future needs of each of the parties; and
  • Any other relevant factor.

How is property, superannuation and debts divided? Do I have to sell the house?

Property settlement doesn’t mean everything has to be sold.

We look at how your particular pool could be divided to achieve a fair outcome. This can include transferring superannuation between former spouses or partner (called “super splitting”) or making adjustments in assets or debts.

If any property you have is subject to a mortgage, we can assist you to navigate whether the house needs to be sold or not and how this can be dealt with in settlement.

Outcome – financial freedom from your ex!

The outcome of property settlement should be that you and your former partner or spouse are completely financially separated.

Once property settlement has been formalised, either by a Consent Order, Financial Agreement or other Order of the Court, you are free from any claim from your former partner and you cannot bring any claim against them.

Do I have to wait 12 months? Is there a time limit?

You can start property settlement immediately after you separate, you do not have to wait at all. We strongly recommend you take steps to get advice and divide the property pool sooner rather than later.

There are time limits for applying to court for property settlement –

  • For married couples, this is 12 months after your divorce
  • For de facto couples, this is 2 years from separation.

If you do not file an application to Court within these times, you will need permission of the Court to bring your application. This is not a straightforward process.

If you are out of time already, you should seek legal advice immediately.

Why come to us for property settlement?

Apart from having specialist and highly experiences family lawyers available to assist you. we are a “one-stop shop” and can assist you to settle all of your legal issues.

Once property settlement has been completed, our specialist commercial and property law team can assist you with the transfer of sale of the house.

Our specialise wills and estates team can advise and assist you about updating your Will and Enduring Power of Attorney, any Binding Superannuation Nomination or other forms. If you don’t have one of these, we can assist you to make sure you have your affairs in order.

If I have more questions, what can I do?

Please don’t hesitate to Book an appointment for a free 30 minute initial consultation with one of our specialist family lawyers or by calling us on 5576 9999.

CONTACTS FOR THIS AREA OF LAW
Andrew Smyth

Andrew Smyth

Commercial Law Court Work & Litigation Family & De Facto Law Wills and Estates
With 30 years’ experience working in and managing business, Andrew Smyth is sought after by industry and commerce for his specialist knowledge in structuring, regulatory compliance…
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Sarah Galvin

Sarah Galvin

Court Work & Litigation Family & De Facto Law
From Brisbane to Kent County, England, back to sunny Queensland, Sarah has amassed over 20 years legal experience, locally and internationally. In that time Sarah found…
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Isabella Phillips

Isabella Phillips

Court Work & Litigation Family & De Facto Law Wills and Estates
Bell is a solicitor in our Succession & Litigation team and has taken to specialising in estate litigation. Bell graduated from Bond University with a double degree in…
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