Property settlement refers to the splitting of assets between spouses or de facto couples following the breakdown of their relationship. In Australia, the division of assets is governed by the Family Law Act 1975, which sets out the legal principles that a Court must consider when determining the division of assets.
When considering the separation of assets, the Court will consider a four-step approach as follows:
1. Identify and value the net pool of property, which involves determining the value of all assets, liabilities, superannuation and financial resources of the parties;
2. Consider the contributions made by each of the parties at the commencement of the relationship, during the relationship and following separation. This will include all financial, non-financial, parenting and homemaker contributions made by the separated parties;
3. Assess the future needs of the parties, including their age, health and capacity for gainful employment, and whether either party will have the care or control of a child;
4. Consider whether the assets, liabilities, financial resources and superannuation entitlements to be retained or received by each of the parties is just and equitable.
There are also cases where there should be no alteration of property interests between the parties, for example if the Court has found that the parties were never married or in a de facto relationship, or whether it is just and equitable in all circumstances of the case for the parties to only retain all assets they already each hold. Property settlements can be achieved through negotiations and mediation without the need for protracted and costly litigation.
There are different ways for a property settlement to be finalised, including by entering into Consent Orders or a Binding Financial Agreement to separate your assets if an amicable resolution can be reached. If no agreement can be reached, then proceedings can be commenced and the Court can make Orders determining what assets each party is to receive and retain.
Dividing assets can be a highly emotional, stressful and complex process. It is important that you receive specialist family law advice before you reach an agreement about your property settlement or if property proceedings have been commenced by your former partner. A family lawyer can provide you with tailored advice about your property settlement and represent you at Court to assist you to receive an outcome that is just and equitable.
We provide specialist advice on property and financial settlements, helping you understand your entitlements, protect your interests and achieve a just and equitable outcome following the breakdown of a relationship.
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In Australia, the division of assets is governed by the Family Law Act 1975, which sets out the legal principles that a Court must consider when determining the division of assets. When considering the separation of assets, the Court will consider a four step approach as follows:
1. Identify and value the net pool of property, which involves determining the value of all assets, liabilities, superannuation and financial resources of the parties;
2. Consider the contributions made by each of the parties at the commencement of the relationship, during the relationship and following separation. This will include all financial, non-financial, parenting and homemaker contributions made by the separated parties;
3. Assess the future needs of the parties, including their age, health and capacity for gainful employment, and whether either party will have the care or control of a child;
4. Consider whether the assets, liabilities, financial resources and superannuation entitlements to be retained or received by each of the parties is just and equitable.
In accordance with the Family Law Act 1975, the property pool to be divided between parties includes all assets, liabilities and financial resources owned by either or both of the parties, regardless of whether they were acquired before, during or after the marriage or de facto relationship.The property pool will usually include real estate, financial assets (such as bank accounts, shares and investments), superannuation entitlements, personal property (such as cars, furniture, jewellery), interests in entities (including businesses, trust, partnerships and companies) and liabilities.
Yes, prenuptial agreements are legally recognised, however, these are called Financial Agreements in Australia. These agreements can be made before a marriage or de facto relationship, during a marriage or de facto relationship or after separation. To be legally binding, the Financial Agreement must meet strict legal requirements, including the agreement being made in writing and signed by both parties and each party receiving independent legal advice before signing the agreement.
If you cannot reach an agreement between you and your former spouse or de facto partner, you can participate in alternate dispute resolution including negotiations through lawyers or mediation. If no agreement can be reached, then proceedings can be commenced in the Federal Circuit and Family Court of Australia and the Court can make Orders determining what assets each party is to receive and retain.
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