Property Settlements
A property settlement is the legal division of what you and your former partner own and owe after a marriage or de facto relationship ends. It can include your home, savings, superannuation, business interests and debts. Most settlements are reached by agreement. We advise on what a fair division looks like in your circumstances, negotiate on your behalf and formalise any agreement.
How property is divided
There is no automatic equal division. The law considers what each of you contributed and your circumstances, as well as the property available to divide.
The first step is to identify and value what you both own and owe, individually and together. Values generally need to be current, rather than fixed at the date you separated. Both of you have an ongoing duty to disclose your financial circumstances and provide the relevant documents.
Contributions include money and property, but also work done in a business, improvements to a home, homemaking and caring for children. The assessment also considers your current and future circumstances, including your age, health, earning capacity and the care and housing needs of children.
The economic effect of family violence must be considered where relevant. This can affect the assessment of contributions and each person’s current and future circumstances.
The overall outcome must be just and equitable. These principles guide negotiations as well as decisions made by a court.
Businesses, companies and trusts
Either or both of you may be a sole trader, business partner, shareholder or beneficiary of a trust. You may also jointly own land or other property. These interests need to be considered as part of the settlement.
You do not need to have a detailed understanding of your family’s financial interests before seeking advice. We work with you and your accountant or financial adviser to understand those interests and the possible tax consequences of a proposed settlement. We help identify the questions that need answering so you can make informed decisions.
Settlements involving businesses, trusts, farms and inheritances are a longstanding part of our work.
Formalising the settlement
An informal agreement does not prevent a later property claim. If you have agreed on a division, the next step is to give that agreement legal effect.
This can be done through consent orders or a binding financial agreement. Consent orders are made by the court, which must be satisfied that the proposed division is just and equitable. They can usually be made without you attending court. A binding financial agreement is a private agreement with specific legal requirements, including independent legal advice for each of you.
We can explain which approach is appropriate and prepare the documents. If agreement cannot be reached and court proceedings are needed, we prepare your case and represent you.
Time limits
You do not need to wait for a divorce to deal with property.
If you were married, court proceedings for a property settlement must generally be started within twelve months of your divorce becoming final. For de facto relationships, the usual limit is two years from separation.
If the relevant time limit has passed, you will generally need the court’s permission to proceed. Permission is not automatic, so seek advice promptly if a deadline is approaching or has already passed.
“Ros and the PWB team helped me navigate a challenging time, and in turn, her kindness and compassion supported me in making some difficult decisions from a centred place, achieving a well-rounded outcome.”
Stuart — Client
Common Questions
The family home is part of the overall settlement. Whether either of you can keep it, or it is sold and the net proceeds divided, depends on all the property available for division, each person’s financial and non-financial contributions during the relationship and after separation, and each person’s future needs. Contributions are not limited to the home. Other relevant factors can include the effects of family violence.
There’s no automatic 50/50 split in Australia. The outcome is what’s just and equitable in your circumstances.
The court identifies what each of you owns and owes, including superannuation, assesses financial and non-financial contributions, and considers your current and future circumstances. Caring for children and homemaking count as contributions alongside earnings and property. Age, health, earning capacity and the care and housing needs of children can also matter. The economic effect of family violence must be considered where relevant. Orders must be just and equitable; there is no fixed percentage. Our property settlement guide explains the assessment.
The deadline for starting court proceedings is 12 months after a divorce becomes final for married couples, or two years after separation for de facto couples. You do not need to wait for a divorce to deal with property or maintenance. These are filing deadlines, not deadlines for the whole case to finish, and continuing negotiations does not extend them. If the deadline has passed, a late application may still be possible. If the other party does not agree, you can seek the Court’s permission, but permission is granted only in limited circumstances. Get legal advice about your options. Our divorce and time-limits guide explains the position for married couples; our property guide also covers de facto deadlines.
