A property settlement is the division of property owned and acquired during a marriage or de facto relationship. The Family Law Act 1975 deals with property settlements and the same general principles apply in determining the entitlements of a party regardless of whether you were married or in a de facto relationship.

A de facto relationship is defined in Section 4AA of the Family Law Act 1975. The law requires that you and your former partner, who may be of the same or opposite sex, had a relationship as a couple living together on a guanine domestic basis.

There is no formula used by the Family Court to divide property and no one can tell you exactly what orders a Judge will make as every case is different. As lawyers we can provide you with estimates only as the Courts have a wide discretion in making orders that may alter the interest of parties in property. 

The Family Law Act 1975 sets out the general principles the Court considers when determining financial disputes arising out of the breakdown of a marriage or de facto relationship.

  • To identify and value all the property that is available for division. This includes all assets, liabilities and superannuation benefits of each spouse. The value attributed to each item of property is the current value of the asset and the current amount owing on debts;
  • To consider the financial and non-financial, both direct and indirect, contributions made by and on behalf of each party to the acquisition, conservation or improvement of property;
  • To consider the future needs of each party including:
  • whether either party has the care of a child to the relationship;
  • the age and state of health of each party;
  • the income, property and financial resources of each party;
  • the physical and mental capacity of each party for appropriate, gainful employment;
  • the disparity in the income earning capacities of each party;
  • instances of family or domestic violence;
  • commitments that are necessary for each party to support themselves or any other person.

You do not have to wait until you are divorced to ask the Court for orders about your property settlement. However, once you are divorced you have 12 months from the date your divorce order becomes final to file an application for a property settlement. This timeframe can be waived by the Court only in certain circumstances.

If you were in a de facto relationship, your applications for property or financial settlement must be made within 2 years of the breakdown of your relationship.

You do not have to go to Court to achieve a property settlement. You may be able to reach agreement as to the just and equitable division of property by negotiation, mediation, or other means outside Court. In those circumstances we strongly recommend entering into Consent Orders or a Binding Financial Agreement (BFA) so as to formalise any agreement you have reached with your former spouse.

At PWB Lawyers our preferred approach to ascertain quickly whether a negotiated settlement can be achieved or whether Court proceedings may be necessary. We will always advise you of the options available to you so you can make the decisions that are right for you and your family.

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